Natural Environment and Rural Communities Bill - Standing Committee A

[Janet Anderson in the Chair]

Natural Environment and Rural Communities Bill

Clause 44 - Enforcement powers in connection with pesticides

Amendment moved [this day]: No. 124, in clause 44, page 16, line 10, leave out subsections (1) to (3).—[Mr. Paice.]

Janet Anderson: I remind the Committee that with this it will be convenient to consider the following amendments:
No. 65, in clause 44, page 16, line 10, after ‘inspector’, insert—
‘who suspects with reasonable cause that an offence is being committed under section 43’.
No. 125, in clause 45, page 16, line 29, leave out ‘and 44’ and insert—
‘44,[Enforcement powers in connection with pesticides: entry and search without a warrant], [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant]’.
New clause 4—Enforcement powers in connection with pesticides: entry and search without a warrant—
‘(1)If a constable or an inspector reasonably suspects—
(a)that a relevant offence is being or has been committed on any premises, or
(b)that evidence of the commission of a relevant offence is to be found on any premises,
he may at any reasonable time enter the premises and search them for evidence of the commission of a relevant offence.
(2)Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.’.
New clause 5—Enforcement powers in connection with pesticides: entry and search by force without a warrant—
‘(1)If a constable or an inspector reasonably believes—
(a)that evidence of the commission of a relevant offence is to be found on any premises, or
(b)that evidence is likely to be removed, destroyed or lost before a warrant can be obtained and executed,
he may at any time enter the premises and search them for evidence of the commission of a relevant offence.
(2)Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.
(3)A constable or an inspector exercising powers under subsection (1) may (if necessary) use such force as is reasonable in the exercise of those powers.
(4)An inspector may not exercise the power of entry conferred by subsection (1) between the hours of 11 p.m. and 5 a.m. unless accompanied by a constable.’.
New clause 6—Enforcement powers in connection with pesticides: entry and search with a warrant—
‘(1)If, on an application by a constable or an inspector, a justice of the peace is satisfied—
(a)that there are reasonable grounds for believing that—
(i)a relevant offence is being or has been committed on any premises, or
(ii)evidence of the commission of a relevant offence is to be found on any premises, and
(b)that one or more of the conditions in subsection (2)is met, he may issue a warrant authorising a constable or an inspector to enter the premises and search them for evidence of the commission of a relevant offence. (2)The conditions are— (a)in the case of any part of premises which is used as a private dwelling, that the occupier of the premises has been informed of the decision to apply for the warrant;
(2)is met, he may issue a warrant authorising a constable or an inspector to enter the premises and search them for evidence of the commission of a relevant offence.
(2)The conditions are—
(b)in the case of any part of premises which is not used as a private dwelling, that the occupier of the premises—
(i)has been informed of the decision to seek entry to the premises and the reasons for that decision,
(ii)has failed to allow entry to the premises on being requested to do so by a person mentioned in section [Enforcement powers in connection with pesticides: entry and search without a warrant] (1) or [Enforcement powers in connection with pesticides: entry and search by force without a warrant] (1), and
(iii)has been informed of the decision to apply for the warrant;
(c)in either case—
(i)that the premises are unoccupied, or the occupier is absent, and notice of intention to apply for the warrant has been left in a conspicuous place on the premises, or
(ii)an application for admission to the premises or the giving of notice of intention to apply for the warrant is inappropriate because—
(a)it would defeat the object of entering the premises, or
(b)entry is required as a matter of urgency.
(3)References in subsection (2) to the occupier of premises, in relation to any vehicle, vessel, aircraft or hovercraft, are to the person who appears to be in charge of the vehicle, vessel, aircraft or hovercraft, and “unoccupied” shall be construed accordingly.
(4)Sections 15 and 16 of the Police and Criminal Evidence Act 1984 (c. 60) shall have effect in relation to a warrant issued under this section to an inspector as they have effect in relation to a warrant so issued to a constable.
(5)A constable or an inspector exercising—
(a)powers under a warrant issued under this section, or
(b)powers under Schedule 1 in connection with the execution of such a warrant,
may (if necessary) use such force as is reasonable in the exercise of those powers.’.

James Paice: I am sorry that you missed this morning’s debate, Mrs. Anderson, because it was not only interesting but was a precursor to this afternoon’s. Clause 44 is about enforcement powers in connection with pesticides. This morning I referred to my sorrow that this part of the Bill had not been the subject of widespread consultation, because I am certain that, had it been, clause 44 would not have been written as it is. The wording provides extremely wide, and in my view unacceptable, powers of enforcement for inspectors. Subsection (1)(a) allows an inspector to enter
“any premises for the purpose of ascertaining whether an offence is being committed under section 43”,
and subsection (1)(b) says that an inspector may
“require any person whom he reasonably believes has information about the formulation”
and so on to give him that information. It almost smacks of interrogation.
I have looked at legislation that might be considered analogous. The Food and Environment Protection Act 1985, which is referred to in subsection (4), refers largely to the issue of entering vessels, aircraft, containers and, particularly, dwellings. It does not, to any extent, refer to entering farm buildings, the garden sheds that we discussed so much this morning or many other places. I also looked at what is perhaps an equally analogous piece of legislation in the draft Animal Welfare Bill, and the Minister may recognise it as the source of many of the amendments. It has been published for consultation, and I hope that it will soon be a real Bill.
The powers in those Bills are much more detailed than those in this. It is pointless to go into each at this stage, but they clearly lay out the powers of inspectors and constables. They segregate the issues of premises and dwellings and mention when people require warrants if somebody is refusing to provide entry. Most important—this is common to much enforcement legislation but is missing from clause 44—is the statement that the inspector or constable must have just cause to believe that an offence is being committed.
My biggest concern about clause 44 is that it provides a complete and utter opportunity for open access. Under police legislation, even a police officer, if he enters premises, has to have justifiable reason to believe that an offence is being or is about to be committed. That is not evident in the Bill.
Amendment No. 65 seeks to remedy that; it is my de minimis proposal. It would insert the issue of the inspector having reasonable cause to enter premises and to carry out the actions listed in subsection (1). That is, I believe, the minimum alteration that should be made, but I prefer, and commend to the Government—albeit that they entail a larger and, the Minister might argue, more unwieldy change—amendments Nos. 124 and 125 and new clauses 4 to 6. They are lifted from the draft Animal Welfare Bill, and they delineate much more clearly the responsibilities and powers of inspectors who think that there is a problem, as well as the role of the constable and the issue of warrants, with a differentiation between premises.
The Minister could—I have not tabled an amendment to this effect—use the powers of the Environmental Protection Act 1990 as it applies to inspectors. My reading is that clause 44(4), which refers to schedule 2 to the Food and Environment Protection Act 1985, is too narrow to deal with my concerns. Those are that the provision will enable inspectors—we shall deal in later amendments with the question of who the inspectors might be—to enter any premises, be they land or buildings, dwellings or otherwise, on their own decision, without having to demonstrate just cause, and to search for the pesticides that we debated this morning, or any formulation or other information about them, simply to ascertain whether an offence is being committed under section 43. That is far too wide a provision.
One could say a great deal about the matter, but I am not a lawyer and I shall not go into the depths of legal language about the powers of inspectors. The point is made. I am convinced that the clause will not stand. On the advice that I have received, it will be changed at some stage during the passage of the Bill, because it would give an inspector powers out of all proportion to the offence created under clause 43. I hope that the Minister will take that on board and realise that it is necessary to set sensible limits to powers, that there should be a distinction between entry to land or ordinary premises and people’s dwellings, and that the inspector should have a justifiable reason for gaining such entry, which is not what the Bill provides.
I hope that the Minister will accept that the clause involves a fundamental problem and that the far-reaching powers that it gives to the inspector are out of all proportion to the offences and, indeed, the sentences, that we discussed earlier.

Colin Breed: I do not want to reiterate what the hon. Member for South-East Cambridgeshire (Mr. Paice) said, but I sense a certain déjà vu. I was on the Committee that considered the Animal Health Act 2002, and powers of enforcement were much debated and disputed. They were hugely draconian. Perhaps some proportionate enforcement was justified then, because we were looking back to the foot and mouth crisis, when it was sometimes difficult to gain entry to property to inspect animals and ensure that slaughter was arranged quickly, for everyone’s benefit and to avoid the spread of the disease. However, I think that every member of the Committee considered the original drafting of the provisions unreasonable, even in light of that terrible, tragic episode, which hit agricultural and rural communities so hard.
We must bear in mind what the powers are for. We do not need them to allow us to enter premises with the speed that was required for the testing of animals for foot and mouth. Most people recognise that there is sometimes a need to enter properties, particularly if they are empty or the relevant person cannot be reached, but the powers must be proportionate. We ought not to lift powers from one piece of legislation to another and pass them through willy-nilly.
As we discussed in our debates on clause 43, we are talking about possession, rather than use and about intent. There is time for proper, proportionate and reasonable powers to be drafted. The issue revolves around three points, the first of which is justification. There must be clear justification. I compare the Bill to the Animal Health Act again. In the Act, a suspicion that an animal might well be affected may be enough, but in relation to this legislation, inspectors should have proper justification for entering premises.
The second point is about giving notice. In such circumstances, people should be given some notice. Some might argue that people might then run away and hide evidence, but I think that some notice might be appropriate.
A third point to consider is the time of day or night, about which the measure says nothing. Are we really going to allow inspectors to bang on people’s doors at 6 am to see whether there is a pot of pesticide in the barn? The enforcement powers should have some reasonableness to them, so that we do not move down the line of having some sort of police state. Even those who justifiably want to enter premises probably feel that they ought not to charge in without notice at any time of day or night in interrogation mode.
There is scope for the Government to recognise that we are discussing issues of possession and intention and that a relatively small number of incidents will be caught by the measure. We are not talking about the huge problems that were involved with foot and mouth. I hope that the Minister is prepared to reconsider the powers, even at this stage, and make them more reasonable and proportionate.

Madeleine Moon: It may help if I share with the Committee the regulatory and inspection powers that I held as an inspector. Under the heading “Authority to enter and inspect”, my card stated:
“The person named overleaf is authorised to enter and inspect premises to inspect and interview persons, to inspect arrangements, documents and other records and material and take other action in accordance with”
care standards legislation.
The hon. Member for South-East Cornwall (Mr. Breed) talked about justifiability. It will be helpful for Committee members to know that inspectors are extremely busy, and that they do not spend their time thinking, “I am a bit bored today—let me see which door I can knock on and what pesticides they’ve got.” Inspectors are often out late at night, and are sometimes out early in the morning, but only with justification. The work is busy and onerous, and actions have to be justified to line managers. I assure the hon. Gentleman that the people who he describes as worrying about receiving a knock on the door at 2 am to have their paint or garden shed examined need not worry too much.

James Paice: I suggest to the hon. Lady that there is a significant difference between a care standards inspector and somebody—we do not yet know who, as we have not debated that point—who will act as an inspector under the clause. There is nothing in the clause to say who inspectors will be or who they will be employed by—if, indeed, they will be employed by anybody. All that they will need is written authorisation from the Secretary of State. They will not necessarily be the busy, full-time employees whom the hon. Lady describes. The clause is so wide that any comparison that she makes will not necessarily be accurate, because we do not know what we are talking about. Even so, I suggest that there is a great gulf between what might happen in the care homes to  which she refers and the offence that we are discussing, which, as the hon. Member for South-East Cornwall said, is only an offence of possession.

Madeleine Moon: My point is that people who are given the onerous task of carrying out the role of inspecting any facility or service have backgrounds of understanding and knowledge. Their roles are to follow through on legislation, their powers are not arbitrary but contained in legislation, and their responsibilities are clearly set out in their job descriptions and role specifications. I am sure that we will hear from the Minister that such provision will be in place for these inspectors. If it were not so, I would support the hon. Gentleman.

James Paice: But it is not so. Read the Bill.

Madeleine Moon: We should wait to hear what the Minister has to say. I am sure that he is sensible and cautious enough to ensure that any provision for inspection on behalf of Government legislation will be set up appropriately, and that appropriate constraints will be in place, as they are for all other inspectors in the various fields in which they operate.

Roger Williams: I listened carefully to the hon. Member for Bridgend. She mentions other inspectors, but part of the problem is that businesses in this country are so over-inspected that they do not know who will knock on the door next; it could be Her Majesty’s Revenue and Customs, health and safety, representatives of the Assembly or the Department for Environment, Food and Rural Affairs, or someone about animal welfare.

John Mann: That is a rather extravagant statement. Can the hon. Gentleman back it up? I had my own business for eight years, and I do not recall streams of inspectors calling.

Roger Williams: Well, I can put my hand on my heart and say that I have had an inspection from every one of the inspectors I have mentioned. The last time that I was inspected by Customs and Excise, the officer said that my records were so good and my compliance so great that he would not need to see me again this century. Actually, he was talking about last century, but I have not seen him since.
There is an accumulation of inspectors, and that is a huge pressure on businesses, particularly small businesses, which may be owned and run by one person. A number of us are concerned about the fact that another form of inspection can take place under the Bill. Almost six months’ notice is given for school inspections, but I doubt whether the inspectors or constables who will carry out these inspections will give six months’ notice.
My business was inspected last week to determine whether its farm assured status could be renewed and the inspectors found an out-of-date animal medicine bottle—not that we were going to use it. I must tell the Committee that a case recently came to my notice of a doctor who used out-of-date medicine on a patient in  my constituency, yet we were criticised for having an out-of-date animal medicine that we did not intend to use on our farm.
There is a build-up of stress because people are vulnerable to this type of inspection. We must view the issue with great concern, and I am not surprised that the hon. Member for South-East Cambridgeshire and my hon. Friend the Member for South-East Cornwall are making a point about it. I do not think that the measure will stand.

Jim Knight: I welcome you back to the Chair, Mrs. Anderson. This is an interesting and important subject. As the hon. Member for South-East Cambridgeshire said, we have had our debate on clause 43. Clause 44 seeks to introduce the powers that will be available to inspectors appointed by the Secretary of State or the National Assembly for Wales for enforcing the clause. We agreed on both sides of the Committee that we were all motivated by the importance of taking action to deal with the poisoning of birds with pesticides. In speaking to the amendments, we must bear that in mind. I shall clarify what those powers are, and why we need to take such powers, which are wide-ranging but restricted to enforcing clause 43. They are not powers for inspectors to do anything that they like, but they are powers in respect of possession of pesticides that are harmful to wildlife. They are powers of entry to premises to check whether a person is storing a pesticide containing a prescribed ingredient without lawful authority; powers to search a house where an inspector reasonably suspects such a pesticide is being stored, but only where a warrant from a justice of the peace has been obtained; powers to seize any substance that an inspector has reasonable grounds to believe is a pesticide containing a prescribed ingredient; and powers to bring with them other persons or equipment to assist in performing their duties. They are wide-ranging powers in respect of enforcement of clause 43, but are so because of the nature of the problem.
I shall characterise the nature of the problem with an example. An inspector discovers a dead bird of prey, and it is clear that the bird has been poisoned. It is not clear by whom, but birds fly so it must be someone within the range of the flight of that bird. It then falls on the inspector to enforce the law, because it is illegal to poison birds, and find whoever is guilty of the offence.
As we discussed this morning, it is difficult to enforce the original Wildlife and Countryside Act 1981 offence of poisoning birds, because circumstantial evidence cannot be used, and it must be properly proved that a particular individual committed the offence. Clause 43 introduces an offence of possession of prescribed pesticides. That is why the powers are wide. The inspector can politely knock on someone’s door and ask to inspect the premises. If it is a door to a dwelling, they must have a warrant from a justice of the peace, but if it is a gate to premises, such as to land or to a shed, they can go in and inspect. That allows for enforcement to deal with a problem that we all agree is a serious one.

James Paice: Two quick points. First, if it is not a dwelling, the inspector can go in. So whatever the circumstances and whatever reason the owner may produce for not allowing an inspector in at that particular time of day, such as something else happening or some form of disease risk, they can still go in. Secondly, how can the Minister possibly justify giving an inspector in this case more powers to deal with the offence? The bird is dead, so timing cannot be quite as much of the essence as they are in circumstances relating to the draft Animal Welfare Bill. In that Bill, where a live animal may be suffering, it is not proposed to give the inspectors such urgent powers of entry as in this Bill.

Jim Knight: The hon. Gentleman talks about any time, anywhere—we are almost back to Martini again—but DEFRA’s guidance to Rural Development Service staff is that “reasonable hours” means 7 am to 7 pm, so we are not saying, “any time,” but, “what is reasonable.” As my hon. Friend the Member for Bridgend has said, inspectors act reasonably, and they will act when they suspect that an offence has been committed.
We will discuss the identity, training and quality of inspectors in our debates on later amendments, but I can assure the hon. Member for South-East Cambridgeshire that, in my limited period in office as a Minister, I have been very impressed with the quality of inspectors and the advice that they have given me on a range of subjects.
The hon. Member for South-East Cambridgeshire said that the inspectors had more powers than animal welfare officers. I am content that the very specific powers that we are giving inspectors to deal with a specific problem, which we all agree is a difficult one to tackle, are sufficient. I have not read the draft Animal Welfare Bill, although perhaps I should, and until I do I am not in a position to judge whether the powers that it grants to deal with various offences are appropriate. I am sure that the Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Exeter (Mr. Bradshaw), who will pilot the Bill through Committee, will have made that judgment and that it will be an excellent one.
The hon. Member for South-East Cambridgeshire says that the Food and Environment Protection Act 1985 does not contain powers of entry to buildings, sheds and so on, but it does. Section 19(2) allows an inspector entry to any land, including buildings and sheds, where pesticides are stored or have been applied to land.

James Paice: Where does the clause refer to section 19(2) of the Food and Environment Protection Act 1985? Clause 44(4) refers only to implementing schedule 2 to the Act; it does not refer to buildings.

Jim Knight: I am referring to what I understood the hon. Gentleman to mean when he talked about our extending powers that are not in FEPA, and I am trying to make it clear that section 19(2) of FEPA does contain those powers. Whether or not the clause refers  to them is irrelevant to the point that I am trying to make. I apologise to the hon. Gentleman if that is not clear.
I want to make a substantial point about the amendments. The role of an inspector authorised by the Secretary of State to gather information on the possession of pesticides containing a prescribed ingredient should not be confused with the role of, say, a police officer who can gather evidence that may be used in a criminal prosecution. Some of the amendments do create that confusion.
Wildlife inspectors authorised under the Bill will not have powers under the Police and Criminal Evidence Act 1984. Their function is purely to gather information that can inform a criminal investigation. They will not, however, gather evidence to inform a prosecution. That is the job of the police, who may be assisted by an inspector. If they are assisted by an inspector, they will be governed by a code of the Police and Criminal Evidence Act 1984, in which they are trained.

Colin Breed: Will the Minister give way?

James Paice: Will the Minister give way?

Jim Knight: I give way to the hon. Member for South-East Cornwall.

Colin Breed: I suspect that the hon. Member for South-East Cambridgeshire and I are both thinking the same thing. Will the Minister confirm that the inspector merely has a chat with people when he goes in; that he does not go rummaging around for actual evidence, but simply talks to the landowner, the estate manager or whoever, and then, presumably, disappears again?

Jim Knight: The inspector can enter and inspect, and he or she can look at whatever the powers say that he or she can look at. The hon. Gentleman must bear in mind, however, that an inspector does more than a police constable. A constable deals with collecting criminal evidence for a criminal investigation. An inspector deals with licensing, and may be looking at whether a licence is being breached or is appropriate. An inspector will be doing all sorts of things in the course of his or her duties.
If the inspector is part of a criminal investigation, accompanying a constable or otherwise, the inspector is governed by the Police and Criminal Evidence Act 1984 and is subject to code B of that Act. I hope that that is helpful. I took a while on the matter myself when I was talking to officials earlier.

James Paice: The Minister said a few minutes ago—he may wish to revisit this—that the inspector is not required to comply with PACE as he is not gathering evidence. I think that I heard him right. Yet in subsections (1)(b) and (c), it is clear to a layman that the inspector is gathering evidence. Initially, he is seeking information, but in paragraph (c) he is seizing
“any substance found on the premises, if he has reasonable grounds for believing that it is evidence of an offence”.
It is not too far fetched to suggest that the seizure of that substance may be the only evidence. The inspector goes into a chap’s house, garden, building, shed or wherever and finds a tin of X, which he believes to be an illegal substance. If he takes it away and the chap subsequently denies it was ever there, and it has not been gathered as evidence under PACE, the whole prosecution will fall apart. I find it difficult to follow the Minister’s statement that the inspector is not governed by PACE.

Jim Knight: This is far from straightforward. If I mislead anyone, I shall certainly correct myself as soon as I can. My understanding is that if inspectors are going in and seizing property because they suspect that an offence has been committed, they are gathering information that may inform a criminal investigation. They may then go to a constable and say, “An offence has taken place. I have confiscated this item.” The constable may then return to pursue a criminal investigation, and that will all be governed by PACE.

Madeleine Moon: Perhaps I can provide some assistance, although I can comment only on the powers that I had as an inspector. I would inspect up until the point when I suspected that there was an offence. If I reached that point, I would stop and give a caution under PACE. What I proceeded to do then would be governed by PACE. I would act as an inspector, but at the point at which I had a concern, I would then read a caution and move forward to use the PACE provisions. I carried both powers, but I implemented the PACE powers only after notifying the person that I was moving into that area.

Jim Knight: That is a helpful clarification of the experience of an inspector. I was about to say that it is important to clarify the difference between an inspector who is inspecting and a constable who is pursuing a criminal investigation. Obviously, the constable is governed by PACE. There are circumstances in which an inspector may be governed by it, but otherwise he will be governed by the powers in the Bill. It may be helpful if, after I have managed to extract a clearer note from my friends, I write to the Committee, spelling out the matter in a way that I have clearly failed to do this afternoon.
It may be some comfort to the hon. Member for South-East Cambridgeshire to know that we have sympathy with amendment No. 65, which attempts to deal with the problem of fishing trips. If he likes, he can chalk it up as a victory, but that is as good as he is going to get for now. There is a view among some that inspectors should not engage in what has been described as fishing trips. However, because birds often fly away before they die after eating poisoned bait, inspectors may not know on which land such bait has been used and might need to visit a few nearby premises. In addition, they might not have found any evidence of dead or dying birds and might just be reacting to information supplied to them about suspicious activity.
The powers available to inspectors must be able to address those situations. A failure to have powers that are fit for purpose is likely to result in a failure to achieve our policy and to make clause 43 work. We cannot accept amendment No. 65 because it constrains our ability to deliver the clause properly. We understand the concerns that the hon. Gentleman and others have expressed. We would like to go away and consider carefully whether we can find a form of words that meets his concerns about reasonableness. I hope that on that basis, he is happy to withdraw the amendment.

James Paice: It is nice to end on a slightly higher note.
I appreciate and welcome the Minister’s offer to write to Committee members. That would be helpful. We are slightly pre-empting a later debate, but the issue of whether or not inspectors operate under PACE is important. It is clear that paragraphs (b) and (c) are about gathering evidence. As I understand it, if the information in subsection (1)(b) that the inspector requires from a person is to be used in criminal prosecution, it would have to have been gathered under PACE. I am not a lawyer, but a layman. It seems to me that to carry out subsection (1)(b), the inspector would have to be operating under PACE for the information to be admissible. I look forward to the Minister’s clarification—perhaps he does too.
I remain concerned about premises. In answer to my earlier intervention, the Minister referred to subsection 19(b) of the Food and Environment Protection Act 1985, but that does not appear in this provision. My concern is that the only bit of FEPA that is referred to in clause 44 is schedule 2, and that is in the context of the introductory section; the assistance for officers, which the Minister mentioned; powers in relation to vessels’ aircraft, which I suggest are probably not that relevant to this debate; opening and searching containers, although it is unclear whether that refers to a tablet bottle or to a cross-channel container; evidence of officers’ authority; time of performance; entry into dwellings; power of officers to use reasonable force; protection of officers; and defences. There is no reference to any other form of premise.
That is why there is a disjunction between subsection 1(a), which refers to an inspector being able to “enter any premises”, and this provision, which appears to relate only to a limited type of premises.

Jim Knight: I want to clarify the relationship with FEPA. I referred to section 19. There are powers in that Act to enter land, including buildings and sheds. Officers currently operate under powers contained in section 19 and schedule 2 of FEPA. However, because of the far-reaching nature of the offence that we outlined in clause 43, we considered it necessary to constrain those wide-ranging powers as we have done in clause 45, in relation to what they would have been had we retained them in section 19.

James Paice: That is helpful and I am grateful to the Minister. It brings me to the amendments. I still find things somewhat puzzling. I do not argue the point that poisoned birds might fly a considerable distance  before falling to the ground, so it will not always be easy to trace the source of the poison. Of course I understand that that is the case. Nevertheless, at that stage no bird or animal is deemed to be suffering—although that might happen in the future—whereas the draft Animal Welfare Bill addresses the prevention of suffering.
I accept that that is not the Minister’s responsibility. He admits that he has not read that draft Bill, and there are many draft Bills that I have not read, although I have read that one. However, I am surprised that when his officials were reflecting on my amendments, bells did not start to ring, because in every respect—except, of course, for the insertion of the words “section 43” wherever relevant—the amendments are a direct lift from that draft Bill. I am surprised that the Minister was not pre-warned about that from within his Department.

Jim Knight: When we talk about the single bird being poisoned, we must also have in mind that that might be part of a pattern of activity. Over the weekend, I heard about a serious incident involving peregrine falcons and the poisoning of the two parent birds. In that circumstance, one parent bird might be discovered poisoned and then, on suspicion that an offence is about to take place, action could be taken to protect the second parent bird. Therefore, we should not only think about a single bird in isolation.

James Paice: I accept that. We all agree about what we are trying to achieve and there is no distinct difference between us on that. However, I simply make the point that when an animal is suffering at a moment in time, that is an urgent situation. The draft Animal Welfare Bill proposes to address that, but that is not replicated in this Bill.
The Minister, in a generous gesture—at least, generous in comparison with what has happened before—moved on to amendment No. 65 and accepted the principle of what I am trying to achieve. I want fishing trips—I did not use that phrase, but the Minister was correct in saying that it is the jargon that is often used—to be prohibited. Given that he accepted that, I cannot for the life of me see what is wrong with the phrase that I employed, because it is also used in much other legislation.
Amendment No. 65 simply states:
“who suspects with reasonable cause that an offence is being committed under section 43”.
That seems to me to be straightforward. However, I have been a Member of Parliament for long enough to know that Ministers are usually unable to accept Opposition amendments, even if on Report identical amendments appear in the name of the Government. That has certainly happened to me before, and if it were to happen again, I would be happy.

Jim Knight: My understanding of the difficulty with “reasonable cause” as things currently stand is that there would have to be reasonable cause for each individual dwelling that was to be inspected, rather than for the generality of the dwellings in the vicinity of the incident.

James Paice: I am grateful to the Minister for that clarification. He has conceded the principle of what I am trying to achieve, albeit he has not gone as far as I would have liked with regard to the other amendments. However, if we can insert something into the Bill to ensure that fishing trips do not happen, that would be a step forward. In light of the Minister’s spirit in that regard, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Paice: I beg to move amendment No. 66, in clause 44, page 16, line 19, leave out “a” and insert “an appropriately qualified”.

Janet Anderson: With this it will be convenient to discuss the following amendments: No. 67, in clause 44, page 16, line 21, leave out “a” and insert “an appropriately qualified”.
No. 126, in clause 45, page 16, line 38, at end add—
‘(5)“Inspector” means—
(a)an appropriately qualified person authorised in writing by the Secretary of State to exercise the powers under sections [Enforcement powers in connection with pesticides: entry and search without a warrant], [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant] in relation to England;
(b)an appropriately qualified person authorised in person by the National Assembly for Wales to exercise the powers under sections [Enforcement powers in connection with pesticides: entry and search without a warrant] [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant] in relation to Wales.
(6)“Relevant offence” means an offence under section 43.’.

James Paice: This will be a shorter and simpler debate, because it addresses only the issue that the hon. Member for Bridgend (Mrs. Moon), as well as the Minister, has referred to. It is about who the inspectors are, and their qualifications. Amendments Nos. 66 and 67 would insert the phrase “appropriately qualified” to describe the person to be authorised by the Secretary of State or the National Assembly for Wales. We do not want at this stage to define appropriate qualifications, but the amendment would constitute a recognition that not just anyone could do the job.
Earlier the Minister praised inspectors from the rural development service and said that he was impressed by them. I should not argue that point. As far as I know they are fine people. However, we are discussing not particular individuals but legislation. As I said this morning, my purpose is to get the law, within which other things operate, right. We must always move ahead, focusing not just on what happens today, or on individual issues, but considering how the wording of the Bill may be implemented in the future. That is why I believe that a phrase along the lines of “appropriately qualified” is needed. We need some guarantee that it will not be just anyone who will be issued with a certificate of authorisation, or whatever form the authorisation will take. Clause 44(3) states:
“An authorisation ... is subject to any conditions or limitations specified in it.”
I do not know whether it is intended that that could encompass the issue of qualifications, but the question certainly needs to be covered.
I looked at the coverage of training in other legislation, and I return once more to the Food and Environment Protection Act 1985. I was, I must admit, surprised that it did not contain more on the subject. However, section 3, on the authorisation of investigating and enforcement officers, clearly stipulates that the individual concerned needs to be slightly better qualified than just anybody. Trading standards legislation also contains an obligation for sufficient training before someone can be a trading standards inspector. Therefore, I think that some reference to qualifications or training should be included, simply for clarity and the reassurance of people who will inevitably look on the Bill as an attack on their way of life and activities. I do not suggest that that view is accurate, but that is how some people perceive it. I hope that the Minister will continue in the spirit of generosity on which he is now embarked, and accept my very small amendment.

Jim Knight: As we have heard, amendments Nos. 66 and 67 would insert the phrase “an appropriately qualified” into the definition of an inspector, before the words
“person authorised in writing by the Secretary of State to exercise the powers under this section in relation to England”
and would similarly affect the definition in relation to Wales. I read amendment No. 126 as consequential on those amendments.
Officials carrying out inspections to ascertain whether an offence is being committed under section 43 will be authorised by the Secretary of State in England, and in Wales by the National Assembly for Wales. Such persons are unlikely to hold a particular paper qualification but will be appropriately qualified, as my hon. Friend the Member for Bridgend said earlier—she used almost the exact phrase—by virtue of their background training and experience.
The amendment would not add anything useful, as the Secretary of State can give full assurance that officials have the appropriate expertise before they are authorised to carry out inspections. A requirement in the Bill for inspectors to be appropriately qualified might provide a degree of legal uncertainty that would be a distraction in court proceedings and would obstruct justice. It might be a matter for legal challenge whether a particular inspector was appropriately qualified, leading to problems with legal proceedings under clause 43.
There is a precedent in other legislation. The Wildlife and Countryside Act 1981 sets out powers relating to wildlife inspectors, as does the Food and Environment Protection Act 1985. Neither includes a requirement that inspectors should be appropriately qualified. I hope that on that basis, the hon. Gentleman will withdraw his amendment. I cannot promise to be as consistently generous as I was few moments ago.

James Paice: If I am not mixing my metaphors, there are bigger fish to fry at this sitting. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 ordered to stand part of the Bill.

Clause 45 ordered to stand part of the Bill.

Clause 46 - Protection for nests of certain birds which re-use their nests

James Paice: I beg to move amendment No. 119, in clause 46, page 17, line 3, at beginning insert ‘intentionally’.

Janet Anderson: With this it will be convenient to discuss the following amendments:
No. 120, in clause 46, page 17, line 4, at end insert—
‘if it can be shown that the nest has been constructed or used by such a bird within the preceding 3 years’.
No. 143, in clause 46, page 17, line 4, at end insert—
‘(2A)In that section, after subsection (1) insert—
“(1A)In subsection (1)(aa) “nest” means a structure constructed by a bird for its eggs and young.”.’.
No. 109, in clause 46, page 17, line 11, at end insert—
 ‘Owl, BarnTyto alba Chough, Red-BilledPyrrhocorax pyrrhocorax Harrier, HenCircus cyaneus MerlinFalco columbarius Falcon, PeregrineFalco peregrinus’.

James Paice: The clause makes it an offence at any time to damage the nest of a wild bird listed in the new schedule. Three species are listed at present, but it also gives the Secretary of State the power to add to that. Obviously, as with our discussion this morning, there cannot be any difference between myself and the Minister about the Government’s objective. I certainly support the clause as far as it goes, but I am still slightly puzzled.
I looked at the three listed species. There is one pair of golden eagles in England. There are no white-tailed or sea eagles in England. The nearest are hundreds of miles away in the Western Isles and the Hebrides. There are two or three pairs of osprey. This is not exactly a huge issue as far as those three species are concerned. I should like to think that the white-tailed eagle might progress to English or Welsh shores—or even Sheffield—but I do not think that that is very likely in the near future. Therefore inevitably there is a question mark over why the Government are doing this, particularly as I am not aware of any evidence that there is a problem.
It is already an offence to interfere with the nest, eggs or young of these, and most other, species of bird during the construction or use of the nest when the bird is using it for the purpose of hatching and rearing its young. Therefore we are talking about out-of-season interference. I am not aware of any incidents of out-of-season interference with those nests. I do not say that there has not been any, but it does not seem to be a  huge issue at the moment. If the Minister has any evidence in relation to England I am sure that he will produce it in due course.
The clause provides year-round protection for nests of these species, which have one factor in common—they re-use the same nests. Again that is not common to most species of birds, although a few more than these three regularly re-use their nests. Raptors such as these three have a number of nest sites and they use them, not necessarily consecutively, year after year. They will jiggle around and use different ones every year. It is believed that that is a natural instinct, which minimises the parasites that inevitably accumulate in birds’ nests. The reason why they have a few different sites is clear, and we should do what we can to protect them.
Nest robbery is already an offence; there were no instances of nest robbery from those species in England and Wales in 2003 and just two offences in Scotland. That raises the matter, which I touched on earlier, of the possible extension of the schedule to other species. I cannot see why that would be necessary for species that do not re-use their nests. We therefore need to ask whether we are talking about a nest itself or the vicinity. If a nest is damaged or destroyed, the bird will probably be unable to use it again. However, if we are talking about a bird that nests in the vicinity—in the same area of ground or on a cliff—the situation is more difficult. Apart from anything else, proof that it was a nest site will become much harder. However, if we are just talking about damaging, out of season, a nest on a cliff or on the ground that the bird used last year or two years ago, what is to stop the bird nesting a few feet away or rebuilding the nest rather than re-using the old one? I am a bit concerned about that, and I hope that the Minister will clarify the issue of the possible extension of the schedule.
We must consider whether making such incidents an offence will become a serious problem for land managers with bracken clearance, for example. Land managers want to mow or flail bracken, annually or more often, to clear the site and prevent the bracken from invading the hillside, and to undertake hedge cutting. All manner of things, as long as they are done sensitively and out of season in the winter months or in the autumn and, on agricultural land, in accordance with the cross-compliance conditions of the single farm payment, will not interfere with bird nesting. I am apprehensive about where the overall approach of extending year-round protection is going.
In respect of the three species, I am more than happy to support the Minister on clause 46 but I question the scale of the problem—or the lack of scale of the problem, to be more precise. Is the proposal really necessary? What further action should be taken?
Amendment No. 119 would insert the word “intentional” in new paragraph (aa) in clause 46(2). I cannot see how anyone could take, damage or destroy the nests of the three species unintentionally or accidentally, given where they nest, other than crashing a light aircraft into them, as the nests are huge  structures in a tree or on a cliff face, which are visible to anybody. Clearly, any damage would be intentional.
However, in the context of the extension of the schedule, we could be talking about accidental damage. For example, if the provision were extended to ground-nesting birds, somebody could easily accidentally damage a nest by bracken cutting or mowing out of season. The person might not be aware that the bird had nested there six months or a year or so earlier. Intentionality—separating out the accidental from the intentional action—therefore becomes that much more important.
Later I shall move another amendment, which refers to the word “reckless”. If the Minister were to say that he would be sympathetic to an amendment involving a reference to someone who intentionally or recklessly “takes, damages or destroys”, I would be perfectly happy. However, I am a bit concerned that, as the Bill reads, if the schedule was extended at some stage, people could find themselves prosecuted when they had not set out to damage a nest, and were not even particularly reckless.
Amendment No. 120 sets a time scale. As I mentioned, eagles and ospreys regularly have a number of nest sites and they may not use them all each year, particularly in the case of eagles. It is clearly logical that the protection extends to more than the site that they used last nesting season. However, it is not reasonable that a nest is a nest for ever and a day, which is how things stand as the Bill is drafted. There needs to be a sensible time limit that makes it clear when a nest ceases to be protected in this way—for instance, because that particular pair of birds have died or moved on and others have not taken up the nest site. I discussed this matter informally with the RSPB and it is sympathetic to the idea of a time limit. It suggested that five years might be better than three, and I am certainly not going to push for three years, but I hope that the Minister will accept the principle that one should not just include in legislation a provision stating that once an eagle has made a nest it will be protected for ever and a day, even if no eagle ever goes anywhere near it again. That detail needs to be addressed.
Amendment No. 143 seeks to define what is meant by “nest”. Again, I believe that that is necessary to make the Bill meaningful. I suspect that the Minister will say that the legislation about damaging nests when birds are using them does not define “nest”, but I think that a definition should be included in this context because we are talking about specific species and nesting sites. That is particularly the case in relation to those species that nest on cliffs or sheer faces. In some cases, the nest is a huge structure, but it is not always obvious. I am a bit concerned that if we do not define “nest” there is a risk that people will say, “Well, I once saw a bird perching there,” and therefore that spot  could be construed as a nest. Once we move on to the possibility of extending the schedule to other species, that becomes more important.
Amendment No. 143 seeks to define “nest” in a way that most people would consider to be perfectly reasonable, as
“a structure constructed by a bird for its eggs and young.”
That seems pretty unequivocal. It refers to something definitive, which is better than the vague term “nest”. That will be particularly true if the schedule is ever extended, because some birds do not make nests. They just lay their eggs on a ledge, or on the ground.

Peter Atkinson: Think of cuckoos.

James Paice: Or they lay them in somebody else’s nest, like cuckoos, as my hon. Friend says. I do not expect that the Minister is planning to extend the legislation to cuckoos—but we need to define what is meant.
I consider those three amendments to be quite important in addressing weaknesses in a proposal that I entirely support in principle.
The hon. Member for South-East Cornwall and his colleagues have tabled another amendment that would extend the schedule to a further five species. As I implied in my earlier comments, that is where I begin to have some concern. I do not wish to pre-empt their advocacy of those five species, although I know the source of the proposal. However, I am concerned that such an extension would cause serious problems. Some of those species are ground-nesting birds. Some of them do not use the same nest again; they may nest in the same vicinity but they do not use the same nest. We shall get into difficulties if we allow the list to be extended.
The three species included in the schedule are wonderful, tremendous birds. It is a thrill to see them at all, and we should delight in the fact that at least two of them are in our countryside—the white-tailed sea eagle is not there yet, but I hope that it will be—and they need to be protected. I am wary in case we extend the provisions too far. I think that I have made that point thoroughly.
The three amendments I have tabled are intended to get the legislation right. They fulfil the role for us that I described this morning—as legislators trying to get it right. The amendments are not designed to negate or reduce the impact of the legislation—as I suspect some of my critics might think—they are designed to get the legislation right. I hope that the Minister will feel amenable to their spirit, if not their words.

Colin Breed: As the hon. Member for South-East Cambridgeshire said, amendment No. 109 would extend the schedule to cover five further birds. I am grateful to the RSPB, which helped us to draft the amendment.
The amendment’s purpose is clear: it would make the list of species in schedule ZA1 more relevant to the current situation in England and Wales. As the hon. Gentleman said, the current list includes some magnificent birds, but in relation to relevance and nesting, it does not have much to do with the clause. The species that would be added by our amendment  include important breeding populations in England that would significantly benefit from year-round protection.
Either the schedule will remain as it is, with limited real benefit and effect, or it will be extended to give it some real meaning for particular birds where there is already a significant population—although I accept the point made by the hon. Member for South-East Cambridgeshire, that this would create difficulties in some areas, particularly for some farmers and others engaged in agriculture.
As has been said, several species re-use traditional nests, and sometimes a very long history of occupancy has been established. Sometimes, of course, that is one of the reasons why they are more easily targeted by those who would seek to eradicate them. Some species add nest material throughout the year, and some use the nests as roost sites outside the breeding season. In contrast to the current legislation dealing with birds nest sites, existing legislation protects bat roost sites throughout the year, even when they are not in use. There is a slight discrepancy between that and this Bill.
There is increasing evidence that the nests and nest sites of some species are deliberately targeted by individuals who want to prevent successful breeding. Examples include nest sites regularly used by ground-nesting birds of prey such as merlin and hen harrier being burned in early spring just before the birds return. Trees containing osprey nests are deliberately chopped down, as has been said, and golden eagle nests are pulled apart. Peregrine eyries are blocked with a strategically placed stone or covered in netting to prevent a scrape or a ledge from being used. That is often done in the knowledge that no offence is committed while the bird is not present, but has the desired effect of preventing birds from breeding in that area. As things stand, it is not an offence to stop birds from breeding in an area.
The Government’s UK raptor working group report for 2000 recommended that consideration be given to modifying the legislation to protect certain species’ nests from destruction outside the breeding season. Such protective legislation is already in place in Scotland. I recognise that the Minister wishes to pursue the devolved nature of the legislation—perhaps there are significantly more birds in proposed new schedule ZA1 in Scotland than not. Nevertheless, it would be sensible to co-ordinate such legislation between Scotland, England and Wales, as birds fly between them.
We must recognise that there might be occasions on which a nest needs to be removed, for health and safety reasons or as part or quarrying or forestry operations. However, that should be subject to licences issued by the Department for Environment, Food and Rural Affairs or Natural England and follow procedures under section 16 of the Wildlife and Countryside Act 1981, preferably with a condition that alternative nesting sites be provided nearby.
Of course we support the clause, but we are trying to make it more relevant to England and Wales. I am quite certain that the Minister and his officials have considered long and hard just what the extent of  proposed new schedule ZA1 should be, but as drafted the provisions are not particularly relevant to England and Wales. Extending the provisions, as suggested by amendment No. 109, would provide additional protection for considerably more species, but could create difficulties for those who might damage nests and nesting sites accidentally.

James Paice: I want to raise a difficultly that immediately occurs to me, apart from the suggestions that I made earlier. The first bird on the list in amendment No. 109 is the barn owl. I am sure that we would all want to see barn owls; indeed, we want to see them so much that in many parts of the country people put up boxes for them. Under the hon. Gentleman’s proposal, however, we would not be able to move such boxes. If I put up a barn owl box in a tree but then decided that I wanted to move it to a different tree, I could not do so without going through the huge bureaucracy of securing a licence. I am concerned that that is the sort of trap into which extending the list will lead us.

Colin Breed: I accept that, inevitably, as we try to extend the legislation we come across more bureaucracy. I suppose that there could be a licence, but we are entering the realms of achieving the right balance. We suggest that the balance that the Minister has struck falls short of the protection that we should be considering. This is probably the only time that we shall consider such matters. We have an opportunity, and it would be wrong not to raise the chance of giving wider protection, notwithstanding the fact that there could be certain difficulties, which I fully recognise. I will be pleased to hear what the Minister has to say, because I am sure that the issue has been well discussed in the Department in arriving at the list.

Angela Smith: I have much sympathy with amendment No. 109. As the hon. Member for South-East Cambridgeshire said, there is just one golden eagle nest in England and none in Wales. As has been pointed out, the white-tailed eagle does not breed at all in England. However, the species listed in the amendment are part of the English landscape, albeit in reduced numbers.
There is an old saying that we borrow the world from our children. That is never more true than in relation to wildlife. At the moment, if people want to see a peregrine falcon in my part of the world they have to travel to the Old Moor Wetland Centre in Wath-Upon-Dearne to observe the species in full flight. That is a sad state of affairs and underlines why we need to take the amendment seriously.
The hen harrier was a common bird of prey in the 19th century but was almost entirely eradicated in the same century for the purposes of grouse shooting. Just a few pairs survived in the Orkney islands. The species has managed to breed more successfully in recent years, but recolonisation is slow and still incomplete and that bird is absent from vast swathes of moorland in northern Britain. There are 520 pairs of hen harriers in the UK at the moment, but there is capacity for  1,600 pairs. That is the the room for expansion without endangering the grouse or any other species that may be preyed on by the hen harrier. There is massive room for recolonisation by the hen harrier. More than anything else, that underlines the importance of the amendment.
I understand concerns about extending the legislation because expanding protection for the nest site to the nest area is a serious matter. Although it is difficult to support the amendment, because of the extra consideration that would need to be given to extending the legislation to cover the nest site, I plead with the Minister to give the amendment serious consideration before we discuss the Bill on Report.

James Paice: Hen harriers are wonderful birds and we want to see them. However, I am concerned that the implication of the hon. Lady’s remarks—perhaps she did not mean it, but it is certainly a perception that is shared elsewhere—is that if it were not for grouse moors or keepers, hen harriers would be fine.
The hon. Lady is right about the figures. I know their source: Dick Potts’s study came up with a figure for the potential population of harriers. However, huge swathes of our landscape should, in theory, be supporting hen harriers, but there are none there even though there is not a keeper or a shooting interest for miles. We should not grasp at simplistic solutions to the real problem of increasing harrier hen numbers.

Angela Smith: I take the hon. Gentleman’s point, but the damage was done in the 19th century. My comments were not meant to reflect on 20th or 21st century practices.
I have some sympathy with the new clause, which would introduce the concept of recklessness. There are signs everywhere on National Trust land in the Peak district telling people clearly not to let dogs off leads in areas known for nesting birds and during the lambing season, particularly in spring. I see no reason why serious consideration should not be given to including the amendment’s provisions in legislation now or at a later date.
The hon. Gentleman referred to other difficulties with introducing protection for ground-nesting birds, in particular nests or nesting sites that have been intentionally damaged. That should not be an insurmountable problem. In an area to the south-east of Sheffield, we have cliffs, and skylarks have been nesting there for a considerable time. That is recognised by local people and by the city council. As a result, the grass is not mown when the birds are nesting. It is not beyond our capabilities to resolve such dilemmas. It is much to the annoyance of some of the locals that the grass is not mown then, but that is sometimes the price that has to be paid for conservation.
A question was asked about the barn owl: if someone puts a box in a tree, does it mean that he will never be able to remove it? That serious point needs to be considered, but those who are keen to attract wildlife into their gardens end up on that treadmill  anyway. If someone puts a feeder tube in the garden, he can never stop filling it as it will have started attracting numerous species. I live in the inner city and about 15 species of birds have been attracted to my garden. They form the habit of depending on such feeding. In that sense, most people who are keen to introduce wildlife into their gardens would never want to remove such devices, as they were sufficiently concerned about wildlife to have put that aid to conservation in place.
The reasons for opposing amendments Nos. 143, 120 and 119 have been made, but I urge the Minister to think again about amendment No. 109.

Jim Knight: The amendments deal with the protection of nests for those few birds that reuse their nest year after year. It is a limited number of species, as we have heard. We all agree that they are special birds, which is why we seek that extra protection to aid reintroduction programmes and to ensure the survival of those few that we have. I shall speak to each amendment separately. First, however, I want to respond to questions, particularly those of the hon. Member for South-East Cambridgeshire.
The hon. Gentleman understandably and rightly said that the provision was for a limited number of species, one of which is not currently to be found in England, and in essence asked whether the provision was really necessary as a conservation measure. The three species listed in proposed new schedule ZA1 are the subject of continuing reintroduction programmes, and it is increasingly likely that more breeding pairs will become resident in England and Wales. Although the white-tailed eagle does not yet occur in England or Wales, it is expected to increase its range in the future. That is why we included it. I am sure we all hope that that programme is successful.
The hon. Gentleman also asked whether species could be added to the schedule. I shall turn to that subject when I discuss amendment No. 109. To clarify matters, the proposed new schedule can be varied by secondary legislation at any time, but any proposal to do so would be subject to full public consultation and risk assessment. The Committee should understand that the provisions of clause 46 are very much to do with birds that reuse their nests year after year.
The hon. Gentleman then asked whether the provision for the detection of nests would be applied to ground-nesting birds that returned to a nesting area but not to a specific nest. The provision has been worded carefully to ensure that it applies only to species that reuse their nests year after year. Destruction of their nests can endanger the birds’ breeding success. It is not envisaged that the measure will apply to species that return to the same nesting area and build new nests, as the destruction of their old nest would not deter them from their breeding activity. I will return to that because it is an important issue that is addressed in amendment No. 109, tabled by the hon. Member for South-East Cornwall, which received the support of my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith).
Amendment No. 119 would add a requirement of intent to the offence of taking, damaging or destroying a nest protected on a year-round basis. It is to be inserted into the 1981 Act. The amendment to the 1981 Act introduced by clause 46 sits in an existing section that already requires intent for an offence to be committed. It is therefore unnecessary specifically to include the word “intentionally” in respect of the new offence of taking, damaging or destroying the nest of a species whose nests are protected on a year-round basis, because it is already included and would mean unnecessary duplication.
I understand that the intention behind amendment No. 120 is to protect the nests of the species in proposed new schedule ZA1 while they are being used on a yearly basis and should they be abandoned for a further three years. The species listed in the schedule are so vulnerable that their nests should be protected during the period after the birds leave the nest until their return during the next breeding season. As it stands, the Bill protects their nests in perpetuity even if they fail to return to their nests the following year.
We regard that as essential because birds can return after an absence of some years. The period of absence can vary between species. I asked my officials to let me know the lifespan of the three species, because I thought that that would be helpful. Certainly, it was when I was thinking about the issue. The RSPB told us that the lifespan of the golden eagle is 32 years. According to the Forestry Commission, the lifespan of the osprey is 20 to 25 years. It gave us a similar figure for the white-tailed eagle.
We also believe that successive generations may return to reuse nests, so it is difficult for us to know when we can safely say that a nest will no longer be reused by that species. Given that we have a licensing process, I ask that we allow the nest to remain in perpetuity so that we can extend the protection to those rare birds in England and Wales. Not a great number of nests will be protected in that way. As I said, if any nests pose a danger to public health and safety—if, for example, they are sited in an unstable tree or building, are an impediment to lawful activities such as crop production or cause serious damage to timber—there is a process of applying for a licence to have that small number of nests removed or moved. On balance, the extra protection given to those magnificent species will be well worth the small additional constraint on human activities.
Amendment No. 143 introduces the definition of “nest” to the protection afforded to the three species. Concerns has been expressed that the provision to protect nests on a year-round basis could have serious implications for land managers if “nest” is interpreted widely to include nesting sites. I said that I do not intend to interpret it in that way, especially if we were to include ground-nesting birds, because I have sympathy with that concern. We have carefully worded the clause so that it applies to species that return to a specific nest year after year rather than to a nesting area in which they build a new nest each year.  I give you, Mrs. Anderson, and the Committee an assurance that species will not be added to the schedule unless they reuse specific nests.
There may also be unintended consequences in attempting to define the word nest. For example, to encourage rare birds to breed, conservation workers sometimes construct a framework that birds make use of when building their nest. Most famously, in the constituency of my hon. Friend the Member for Workington (Tony Cunningham), the Forestry Commission constructed a framework for ospreys. That has been used successfully. I am told by my hon. Friend that there are about 100,000 visitors to the site every year to view the ospreys. I am told by the Forestry Commission that that generates £2 million to the local economy. That is a startling figure. I recall the hon. Member for Hexham (Mr. Atkinson) telling us that the grouse moors were worth £3 million to his local economy, and to think that just those two birds in the forest in my hon. Friend’s constituency could generate £2 million is remarkable.
The proposed definition would therefore not necessarily protect such a structure, as it could be argued that it was not constructed by a bird. In addition, birds may build a nest but not produce any eggs, and it is not certain that the proposed definition would cover such a nest. I accept that in some ways I am being pedantic about the wording, and that the amendments were not tabled in order to raise such problems, but the natural, common use of the term “nest” is far preferable, as it avoids creating the uncertainty that would be created, however cleverly the definition it is drafted. The bird species listed in the schedule introduced by clause 46 are birds that return to the same nests year after year and use them for breeding. I hope that the hon. Member for South-East Cambridgeshire accepts that we have found a sensible way of addressing the matter.
The additional species proposed in amendment No. 109 may return to the same general nesting area each year, but they do not reuse the same nests. I fully accept that they are valuable birds. If my hon. Friend the Member for Sheffield, Hillsborough wants to see peregrine falcons, I recommend that she visits my constituency, where there are 12 breeding pairs on the Dorset coast, largely thanks to the Ministry of Defence’s excellent work on furthering the biodiversity on the Lulworth ranges. There is a little controversy in my constituency over the local pigeon races but one can see the peregrine falcons. If the falcons’ nests were removed or destroyed, it would not deter them from nesting in the same area the following year. The appropriate mechanism for protecting such sites is the SSSI procedure; if Natural England is of the opinion that an area which is important for rare birds is of special interest, it can designate it as a site of special scientific interest. That will bring with it all the legislative protection afforded to such sites, which the Government significantly improved in the 2000 legislation.
There has been widespread support from respondents to the consultation on the review of the Wildlife and Countryside Act 1981 for the listing of the three species in the schedule. However, a number of the respondents drawn from landowning and land management interests expressed concern about further species being added without further consultation. We have made it clear—I have made it clear today—that we would consult further if other species were to be added to the schedule. I hope that on the basis of what I have said the amendment will be withdrawn.

Colin Breed: I am grateful to the Minister for that response. I knew that he and his team would have considered the matter very carefully. I think that he understands the concern that has been expressed in Committee. We are all on the same side, and I hope that he might, even at this stage, begin to examine ways in which certain protection could be given without some of the possible ramifications and unintended consequences. We do not get such opportunities often, and there is a good deal of feeling that we need to do whatever we can to try, within the balance of things generally, to provide that additional protection, notwithstanding the difficulty of drafting and implementing it. I am sure that the Minister will reflect before Report on whether there are means by which some protection can be given to those particular species.

James Paice: I let the hon. Gentleman speak first because the lead amendment is in my name. I am genuinely grateful to the Minister because he has sought to address the concerns that I expressed and the points that I raised. I had missed—I am glad that he corrected me—the fact that “intentionally” was already in the legislation. Clearly, therefore, my lead amendment is not necessary. That that may not entirely satisfy the hon. Member for Sheffield, Hillsborough, who opposed my amendment, but never mind. I am glad of that clarification from the Minister. I am also grateful for his affirmation about adding birds only after consultation and only those that re-use a specific nest. That is sensible, and all legislation is about striking a balance. He is right, and I appreciate the assurances that he has given.
On the structure and definition of nests, if I had stopped for a moment I would have remembered that there are artificial osprey nests and perhaps even other nests for those species. I would have realised that in his pedantry the Minister was correct and I was unwittingly excluding them. I did not do that intentionally, but he is right. In some ways, I still believe that there should be a definition, even if my choice of words was not right, but I will go along with what he has said.
The Minister referred to peregrine falcons in answer to the amendment tabled by the hon. Member for South-East Cornwall, and the proposal about using sites of special scientific interest to protect general nesting areas is sensible. I do not know whether he will impose one somewhere in London—I read somewhere  recently that the first peregrines have nested on a building in London—or how we would go about that. The question of whether that should done through listing in a schedule or through a SSSI would be a challenge for the Minister. However, if the hon. Member for Sheffield, Hillsborough cannot see the birds in Sheffield, she can see them in London.
I must confess that I have my reservations about the Minister’s comments on my amendment to introduce a time limit. He used the phrase “in perpetuity”. As I said, I am not wedded to the idea of three years; I just think that it is bad law to provide for something for ever and a day. I accept that there are licensing arrangements, and while there is only a tiny number of the birds, it is not an issue. However, we must be conscious of what might become an issue, considering both the species in question and any others that might be added.
I would have thought that there should be some time limit. As I said earlier, I discussed that with a senior official in the RSPB, who was happy with the amendment but thought that five years would be better, so perhaps the Minister could reconsider. Although he is right that most of the species live to a great age, most people would agree that if an individual bird or pair has not returned in a few years, it is highly unlikely to do so again, because it has probably died, even if that is prematurely. I therefore believe that a time limit should apply.
Overall, the Minister has responded helpfully, and I am grateful to him. Bearing in mind the fact that we have still to debate the issue that the hon. Member for Sheffield, Hillsborough touched on, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Janet Anderson: With this it will be convenient to discuss the following:
New clause 7—Protection of wild birds, their nests and eggs—
‘(1)Amend the Wildlife and Countryside Act 1981 (c. 69) as follows.
(2)In section 1 (protection of wild birds, their nests and eggs), in subsection (1), after “intentionally” insert “or recklessly”.
(3)In section 3 (areas of special protection), in subsection (1)(a), after “intentionally”, insert “or recklessly”.’ .

Jim Knight: The clause provides for a new offence under the Wildlife and Countryside Act 1981 of taking, damaging or destroying at any time during the year the nests of certain wild birds listed in a new schedule. As we have just discussed, the new schedule includes golden eagles, white-tailed eagles and osprey, all of which are listed in annex 1 of the birds directive and are subject to reintroduction or re-establishment programmes. Section 1(1) of the 1981 Act protects nests only when they are being built or in use, but certain endangered bird species return to their nests year after year, and the provision is aimed at supporting their long-term breeding success.
The majority of offences in part I of the 1981 Act require the person committing the offence to act intentionally. However, the suggestion that certain offences should be extended to include instances when they are committed recklessly has been around for many years. The hon. Member for South-East Cambridgeshire made an interesting point about recklessness. The Countryside and Rights of Way Act 2000 introduced additional offences by applying the term “recklessly” to the offences of disturbing schedule 1 birds and schedule 5 animals. More recently, the Nature Conservation (Scotland) Act 2004 applied the term to several offences across part 1 of the 1981 Act as it applies to Scotland.
The hon. Gentleman’s new clause would protect all birds against the offences of reckless killing, taking and injuring; protect all nests from reckless damage and destruction during the breeding season; and prevent all eggs from being recklessly taken or destroyed. It would further extend offences committed in respect of specified birds in areas of special protection.
It is important that in providing protection for vulnerable wildlife we do not place a disproportionate burden on legitimate activities such as farming, timber production, fishing and defence. Such activities can take advantage of the defence available if the action was the incidental result of a lawful operation and could not have reasonably been avoided. To introduce a new offence of recklessness would inevitably have repercussions on that defence. Such repercussions would need to be considered carefully, not least by me if I were to choose to accept the new clause, especially with regard to clause 53, which applies part 1 to the Crown. There would have to be a demonstrable conservation benefit before we followed such a route.
With that in mind, the recent consultation on part 1 of the 1981 Act recommended that offences of recklessness should be limited to providing increased protection for those species that are most vulnerable—birds listed on schedule 1, animals listed on schedule 5 and plants listed on schedule 8. That recommendation was supported by the vast majority of those who responded on the issue, although some concerns were raised regarding proportionality.
All of the above leads me, in a fit of generosity, to having a great deal of sympathy with the intention behind the new clause, but not with the new clause itself. As it stands, the protection that it proposes for birds would go further than the Government and the respondents to the public consultation consider appropriate. It also fails to offer any equivalent protection to vulnerable species of animals and plants.
In conclusion, although the new clause is not completely acceptable, it raises an important issue, which I undertake further to consider.

James Paice: I am grateful to the Minister for introducing clause 46 and for responding in advance to my new clause. He will be aware that the new clause was tabled at the behest of the RSPB, as were some of the other amendments that we have debated today. No doubt it will take note of what he has said.
In some ways, the Minister made the case for the new clause by referring to the 1981 Act and the changes introduced by the Countryside and Rights of Way Act 2000. The fact is that some of the provisions in the 2000 Act are inconsistent in their application—they do not necessarily apply to all the more serious offences. The word “reckless” is variable in value, and, as the Minister said, he has already carried out a consultation. I hesitate to bring in Scottish issues, because one of the benefits of devolution, if we believe in it, is that we do not all have to do the same thing. If we all had to have the same legislation, one would have to question why we had devolution. Nevertheless, the principle stands.
The RSPB’s argument is that the Bill needs to go a little further, which is why the new clause is drafted as it is. The RSPB is concerned about people who use the argument that they did not intend to kill something when it is clear that they were not giving the issue sufficient thought or were reckless. It gives an example of a fish farmer who shot a grey heron but claimed that he thought that it was a wood pigeon—Specsavers could help him, I am sure—and other examples.
Clearly, that is an issue, but I understand the Minister’s concern at extending the provision too widely. I am grateful that he is sympathetic to the overall objective and I assume from that and from his comments about the result of the consultation that he will table appropriate amendments at a later stage in the passage of the Bill. The measure would need to apply to animals; the fact that the new clause did not was an oversight by me and the RSPB. I hope that the Minister will table amendments on Report. I do not know when we will reach Report. Quite often, the Government do not table amendments until Bills go to the other place. There is no question of my being proprietorial, but when an issue has been raised in this House, it is nice for the Government to resolve it in this House, rather than waiting until the Bill goes to the other place.
I am grateful for the Minister’s general comments. I did not move the new clause, so I cannot withdraw it, but I am happy to support the clause generally.

Question put and agreed to.
Clause 46 ordered to stand part of the Bill.
Clauses 47 and 48 ordered to stand part of the Bill.

Clause 49 - Sale etc. of invasive non-native species

Colin Breed: I beg to move amendment No. 104, in clause 49, page 18, line 31, leave out from ‘is’ to end of line 32 and insert—
‘included in Part III of Schedule 9’.

Janet Anderson: With this it will be convenient to take the following: New clause 1—Sale etc. of invasive non-native species (supplementary provisions)—
‘(1)Amend the Wildlife and Countryside Act 1981 (c. 69) as follows.
(2)In section 14(1)(b) (introduction of new species etc.), insert “or Part III” after “Part I”.
(3)In section 14(2) (introduction of new species etc.), insert “or Part III” after “Part II”.
(4)In section 22(5) (power to vary schedules), insert—
“(c)add any animals or plants to, or remove any animals or plants from, Part III of that Schedule.”
After Part II of Schedule 9 of the 1981 Act (animals and plants to which section 14 applies), insert—
“PART III POTENTIALLY INVASIVE OR DAMAGING ANIMALS AND PLANTS NOT NATIVE TO GREAT BRITAIN TO WHICH SECTION 14ZA APPLIES 
 Duck, RuddyOxyura jamaicensis Fern, WaterAzolla filiculoides Hogweed, GiantHeracleum mantegazzianum Knotweed, JapaneseFallopia japonica Parrot’s-featherMyriophyllum aquaticum Pennywort, FloatingHydrocotyle ranunculoides Stonecrop, Australian swampCrassula helmsii”.’. New clause 2—Restoration order where offence under section 14 is committed—
‘After section 21 insert—
“21ARestoration order where offence under section 14 is committed
(1)In addition to the penalties in section 21(4), where the operation in respect of which a person is convicted of an offence under section 14 has destroyed or damaged any flora, fauna or physiographical feature, the court by which he is convicted, in addition to dealing with him in any way, may make an order requiring him to carry out, within such period as may be specified in the order, such operations for the purpose of restoring the habitat to its former condition as may be so specified.
(2)An order under this section made on conviction on indictment shall be treated for the purposes of sections 30 and 42(1) and (2) of the Criminal Appeal Act 1968 (effect of appeals on orders for the restitution of property) as an order for the restitution of property; and where by reason of the quashing by the Court of Appeal of a person’s conviction any such order does not take effect, and on appeal to the House of Lords the conviction is restored by that House, the House may make an order under this section which could be made on his conviction by the court which convicted him.
(3)In the case of an order under this section made by a magistrates’ court, the period specified in the order shall not begin to run—
(a)in any case until the expiration of the period for the time being prescribed by law for the giving of notice of appeal against a decision of a magistrates’ court;
(b)where notice of appeal is given within the period so prescribed, until determination of the appeal.
(4)At any time before an order under this section has been complied with or fully complied with, the court by which it was made may, on the application of whom it was made, discharge or vary the order if it appears to the court that a change in circumstances has made compliance or full compliance with the order impracticable or unnecessary.
(5)If, within the period specified in an order under this section, the person against whom it was made fails, without reasonable excuse, to comply with it, he shall be liable on summary conviction—
(a)to a fine not exceeding level 5 on the standard scale; and
(b)in the case of a continuing offence, to a further fine not exceeding £1000 for each day during which the offence continues after conviction.
(6)If, within the period specified in an order under this section, any operations specified in the order have not been carried out, the authorised body may enter the land and carry out those operations and recover from the person against whom the order was made any expenses reasonably incurred by them in doing so.”.’.
New clause 3—Control of invasive non-native species—
‘After section 14ZA insert—
“14ZAA Control of invasive non-native species
(1)Where the Secretary of State considers that a species listed in Schedule 9 is—
(a)present in the wild; and
(b)is an actual or potential threat to the conservation of flora or fauna; or
(c)is an actual or potential threat to social or economic well-being,
he must add it to Part III of Schedule 9.
(2)Within three months of a species being added to Part III of Schedule 9, the Secretary of State must nominate an appropriate body that within one year will produce an action plan that identifies how the species should be eradicated, controlled or contained in order to protect threatened flora, fauna, social or economic well-being.
(3)Within three months of the action plan being presented to the Secretary of State, he shall announce to Parliament how the action plan will be implemented.
(4)Pursuant to subsection (3) and in circumstances set out in subsection (5), any person authorised in writing by the Secretary of State may, at any reasonable time and (if required to do so) upon producing evidence that he is authorised, enter any land for the purpose of controlling, containing or eradicating a species listed on Part III of Schedule 9; but nothing in this subsection shall authorise any person to enter a dwelling.
(5)The circumstances are—
(a)that the Secretary of State is satisfied that the body nominated to implement an action plan to control or eradicate a species is unable to conclude, on reasonable terms, an agreement to access land in order for the control, containment or eradication to be effective;
(b)that the nominated body did enter into such an agreement as referred to in subsection (5)(a), but that the Secretary of State is satisfied that it has been breached in such a way that operations to control, contain or eradicate the invasive non-native species are rendered ineffective.
(6)A dispute about whether or not there has been a breach of the agreement for the purposes of subsection (5)(b) shall be referred to an arbitrator appointed by the Lord Chancellor.
(7)More than one person may be authorised for the time being under subsection (4) to enter any land.
(8)A person acting in the exercise of a power conferred by subsection (4) may—
(a)use a vehicle or a boat to enter the land;
(b)take a constable with him if he reasonably believes he is likely to be obstructed;
(c)take with him equipment or materials needed for the purpose for which he is exercising the power of entry.
(9)If in the exercise of a power conferred by subsection (4) a person enters land which is unoccupied or from which the occupier is temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.
(10)It is the duty of a relevant authority to compensate any person who has sustained damage as a result of—
(a)the exercise of a power conferred by subsection (4) by a person authorised to do so by that relevant authority, or
(b)the failure of a person so authorised to perform the duty imposed on him by subsection (9),
except where the damage is attributable to the fault of the person who sustained it; and any dispute as to a person’s entitlement to compensation under this subsection or as to its amount shall be referred to an arbitrator to be appointed, in default of agreement, by the Secretary of State.’.

Colin Breed: The clause relates to invasive non-native species. One of the joys of considering the Bill is that it has been quite an educational exercise. I for one have learned an awful lot about all sorts of things. We move on now to plants and birds, but mainly plants. I have to say that I am to gardening what Frank Spencer is to DIY. I tend to kill off most things in my garden—perhaps I ought to be set on non-native invasive species.
We must recognise that there are real concerns in this regard. This is an important clause, and one that could usefully be expanded, in the light of many of the concerns that have been expressed. I hesitate to make a pun and say that there is a growing problem, but there is. There is now greater access to remote areas of the planet. People can travel to all sorts of exotic places and bring back all sorts of things that they see and think would look nice next to the water feature in their garden. Indeed, there is now greater importation of foods and plant material generally. Of course, sometimes what is imported, or at least what is intended to be imported, is perfectly satisfactory, but other things can piggyback on it—plants, animals, spiders and the like. We therefore have to be careful.
I previously had responsibilities in respect of the Department for Environment, Food and Rural Affairs, and I say to the Minister that we still do not have the controls on our borders that we should have. The potential for non-native invasive species and other problems that can be imported needs to be more thoroughly considered. Anyone who has been to Australia, New Zealand or California will know how seriously those places take such things, and the penalties that can be exacted from someone if they accidentally take in something that the authorities in those places do not want to destroy their orange groves or their agricultural production. We need to take non-native invasive species seriously, and amendment No. 104 and new clauses 1 and 2 expand on that idea. They may look a little wordy—we worked quite hard with other people on them—but they are relatively simple.
New clause 1 contains another list of non-native species, some of which will be familiar, especially to those of us who live in the south-west. I do not know whether it grows throughout the country, but Japanese knotweed is a major problem in our part of the world. Some other species are not so well known, but I am assured that they could cause real problems for us in the country.
New clause 2 would add new provisions for use when an offence has been committed, and provide for a restoration order. Proposed new section 21A(1) says that
“where the operation in respect of which a person is convicted of an offence under section 14 has destroyed or damaged any flora, fauna or physiographical feature, the court by which he is convicted, in addition to dealing with him in any way, may make an order requiring him to carry out, within such period as may be specified in the order, such operations for the purpose of restoring the habitat to its former condition”.
If people have been convicted, they should be responsible for restoration. Much of that work has fallen on local authorities, or sometimes even on other landowners, and those who caused the problems have  had no responsibility whatever. People who have been convicted of causing an offence should be made to restore the habitat to its former condition. The new clause sets out other provisions that would ensure that some restoration was undertaken.
Subsection (4) of the proposed new section states:
“At any time before an order under this section has been complied with or fully complied with, the court by which it was made may, on the application of whom it was made, discharge or vary the order if it appears to the court that a change in circumstances has made compliance or full compliance with the order impracticable or unnecessary.”
When damage has been extended over significantly large areas, it sometimes becomes unnecessary to discharge an order, and we must recognise the practicality of such action. None the less, there should be real penalties with which people may be expected to be charged if they are convicted of such offences.
New clause 3 covers the control of invasive non-native species. It sets out a framework whereby problems can be examined when they are discovered, to ensure that prompt and appropriate action is taken. Part of the problem is that we do not do anything until the situation has become so bad that it is almost impossible to act appropriately. We have tried to put down a framework under the new clauses so that the Secretary of State can identity an appropriate body to deal with a certain problem, produce action plans and specify time scales so that the species can be eradicated or controlled in some way, to provide protection to threatened flora or fauna—or, indeed, to social and economic well-being. People know that some non-native invasive species have had a massive economic effect on landowners or farmers.
The new clause would provide a power to enter land with a constable. Notwithstanding the powers granted to inspectors, to which we have referred earlier, we tried to draft proportionate and reasonable definitions of the circumstances in which someone could enter areas of land. Under proposed new subsection (8),
“A person acting in the exercise of a power conferred by subsection (4) may ... use a vehicle or a boat to enter the land ... take a constable with him if he reasonable believes he is likely to be obstructed”,
although that may not always be necessary.
Under proposed new subsection (9), if someone enters
“land which is unoccupied or from which the occupier is temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry”,
and not just wander off again. He must make proper attempts to ensure that the land is secure. If there are any problems while he is there and any damage is done, proper compensation should be secured.
These are reasonable powers; if we are giving people powers to enter land, perhaps accompanied by a constable, they should be proportionate and reasonable. That is why new clauses 1, 2 and 3 and amendment No. 104 enhance the proposal. If it is not exactly what the Minister and his Department would propose, perhaps they can take those as a template, look at clause 49 on invasive non-native species and the Bill as a whole, take a wider purview and perhaps table additional clauses that reflect the amendments. I shall be interested to hear what the Minister has to say.

Jim Knight: I am grateful to the hon. Gentleman for introducing a discussion on this very important subject. He is right to say that we have recognised the significant threat posed by invasive non-native species. I am pleased that it was him who introduced the amendments, given that some of my hon. Friends regard members of his party as non-native invasive species in their constituencies, which we are all focused on the need to eradicate.
We acknowledge our obligations under the convention on biological diversity to prevent the introduction of, to control, and as far as possible to eradicate, as appropriate, species that threaten ecosystems, habitats or species, and under the Bern convention to develop national strategies and action plans. We have undertaken a recent consultation on the outcome of a review of non-native species policy across Great Britain, and proposals for legislation in England and Wales.
We consulted on a proposal similar to new clause 2 in our review of part 1 of the Wildlife and Countryside Act 1981—that a person convicted of an offence under section 14 might be required by order to carry out at their own expense restoration of any damage caused. Responses to the consultation generally supported the proposal, while emphasising the difficulties of quantifying damage and administering orders.
Similarly, the proposals in new clause 3 constitute a means of focusing on and driving action in relation to the control of invasive non-native species, but go further than those included in the Government’s review of part 1 of the Act, which suggested a power for the Secretary of State to take or require action to control, contain or eradicate species listed in schedule 9 and for associated powers of access. Responses to that were mixed; many favoured the idea but were concerned about the implications, including resource needs, and supported a power rather than a duty. It was also questioned whether action should be based on a sound and transparent risk assessment process.
In response to the consultation and the work we have done, my fellow Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Exeter (Mr. Bradshaw), announced in March the intention of establishing a programme board to oversee the implementation of non-native species policy across Government. The Department has allocated funds for the purpose and I expect the board to meet for the first time in the late summer. I hope that that is a sign to the hon. Gentleman that the Government want to take action.
I will consider the proposed amendments in the following context: I welcome the idea of using a sub-set of species in schedule 14 on which action should be focused, with appropriate powers for the Secretary of State to ensure that action is taken. Not all non-native species are invasive, and action is not always necessary or feasible; it must be appropriately targeted. Sometimes a tight geographical focus is necessary for control purposes. However, I am concerned about the approach proposed in the amendments; a comprehensive package of legislation and policy is the appropriate way forward. As I said, we consulted on  some of the essential elements and received a large range of constructive responses. We must consider and develop those over the coming months.
The development of policy on non-native species depends for its effectiveness on securing full stakeholder engagement and support. In other contexts, we have been criticised for rushing to legislate before stakeholders have drawn breath. We heard that criticism articulated in respect of some of things to do with wildlife crime. I do not think that we should take action in this Bill, but we should ensure that we come forward with suggestions on how to act. I hope that the hon. Gentleman will regard that as a commitment to make progress, albeit at a later date, rather than simply an attempt to shelve this important subject.

Colin Breed: I am glad that we have provoked some additional debate and consideration of this increasingly important subject. As I said, because so many people are able to go to so many different places—in fact, the more exotic, the better—we are under threat from things that we do not even know about now. Our weak border controls might land us in another Japanese knotweed situation before we know it.
I am pleased that the Government are taking the problem seriously. I take it as a commitment, albeit one to make progress. They need to be committed. It may require separate legislation, and obviously they have considered it by putting it in the Bill. I recognise that each Bill cannot contain everything all the time, although I would have thought that the matter might have commanded a slightly higher priority in this legislation. However, I am content with what the Minister said.
I am sure that we shall return to the problem, although I hope that we do not because species such as Japanese knotweed are dangerously invasive, and potentially economically damaging. If we are still at the progress stage and are bombarded with a serious problem, people are going to ask why. I hope that the progress is speedy and that the commitment is firm. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Clause 49 ordered to stand part of the Bill.
Clauses 50 and 51 ordered to stand part of the Bill.

Schedule 5 - Enforcement powers in connection with wildlife

James Paice: I beg to move amendment No. 115, in schedule 5, page 54, line 24, at end insert—
‘(1A)A person may not be authorised under subsection (1) unless he holds such qualifications as the Secretary of State, or (as the case may be) the National Assembly for Wales, may prescribe.’.

Janet Anderson: With this it will be convenient to discuss the following amendments: No. 116, in schedule 5, page 54, line 32, at end insert—
‘(5)A wildlife inspector exercising powers under this or any enactment shall comply with any Code of Practice issued under sections 60 and 66 of the Police and Criminal Evidence Act 1984.’.
No. 117, in schedule 5, page 54, line 34, after ‘inspector’, insert—
‘who has reasonable grounds to suspect that a Group 1 offence has been or is being committed’.
No. 118, in schedule 5, page 55, line 41, after ‘inspector’, insert—
‘who has reasonable grounds to suspect that a Group 2 offence has been or is being committed’.

James Paice: The debate has been presaged by earlier debates. Amendment No. 115 would introduce wording about qualifications again, and amendments Nos. 117 and 118 would require the inspector to have reasonable grounds to enter and inspect any premises. The argument that I made earlier remains, because schedule 5 involves huge change to the Wildlife and Countryside Act 1981 as it applies to wildlife inspectors, all the different offences, the examination of specimens, the taking of samples, the powers of constables and the powers of wildlife inspectors, as extended to other Acts. It is a massive schedule, which will change a lot. I accept the Minister’s comments about my earlier point on qualifications, when he said that it could be open to legal challenge if an inspector was not appropriately qualified. Nevertheless, there is an important point at stake—namely, that someone needs to have confidence that the inspector knows what he is doing. The Minister made the same argument as the hon. Member for Bridgend, who spoke from her own experience, which is that the qualification is effectively a combination of experience, knowledge and background.
Despite having been an Education Minister, I certainly do not believe that a piece of paper automatically proves that someone is qualified. Background, knowledge and experience are just as, if not more, valuable. My interpretation of the word “qualification” would not be so narrow as to mean a particular piece of paper—a certificate or whatever—but would refer to the broader context of the word. It would not refer to someone who did not know very much about the subject.
As for the “reasonable grounds” amendments—that is, amendments Nos. 117 and 118—my arguments stand. In the schedule, under the group 1 offences in proposed new section 18B and the group 2 offences under proposed new section 18D, the inspector cannot enter and inspect premises unless he has a reasonable suspicion that a crime is being or has been committed. It clearly states that a purpose of entering is to ascertain
“whether a Group 1 offence is being or has been committed”.
That takes us back to fishing expeditions, to which the Minister referred. If we are to prevent fishing expeditions, something needs to be included to ensure that justification is necessary before people use the powers. I look forward to the Minister’s reflections on that, alongside the reflections that he promised earlier.
Amendment No. 116 relates to the Police and Criminal Evidence Act 1984, which we have discussed. The Minister promised to write to the Committee regarding the role of the inspectors as far as pesticides are concerned. Obviously, that is in a different context, but the same argument applies. The amendment would add the stipulation that
“A wildlife inspector exercising powers under this or any enactment shall comply with any Code of Practice issued under sections 60 and 66 of the Police and Criminal Evidence Act 1984.”
That is a perfectly reasonable position to adopt. We are talking about evidence, including all sorts of things like the collection and examination of specimens and taking samples. These are clearly issues about evidence that may be used in a criminal prosecution. I do not understand how those functions can be carried out other than in the context of PACE.
I listened with interest to the experiences of the hon. Member for Bridgend, who said that when she was wearing one hat she would sometimes use PACE, but that when she was wearing another she would not. She would momentarily stop and change hats and say, “Now I’ll start using PACE.” That is a recipe for confusion, particularly among people who are to be inspected or investigated under the Bill. It would be clearer if, up front, everything was done under the auspices of PACE. If the Minister decides that the best way to deal with the problem—as well as the problem of the other aspect of the involvement of PACE—is to address it in correspondence, I shall be content. However, there is a case to be answered as to how an inspector can operate and gather evidence that may be used in a criminal prosecution, and how he can ensure that it is not disallowed in that prosecution, other than by following a code of practice under PACE.
All four amendments are appropriate. They are, to a degree, a rerun of previous amendments, but I look forward to the Minister’s response.

Jim Knight: I will do the best I can to help the hon. Gentleman. If I fail, we will go down the other route of correspondence, but I will do what I can now to satisfy him.
Amendments Nos. 115 to 118 would amend schedule 5, which enhances enforcement powers in relation to wildlife. The amendments attempt to restrict unnecessarily the appointment and operation of wildlife inspectors. Amendment No. 115 would insert a new subsection to restrict who can be authorised by the Secretary of State as a wildlife inspector to those who hold such qualifications as the Secretary of State may prescribe.
All wildlife inspectors receive appropriate training to ensure that they can carry out their duties in a professional and effective manner. It may help the Committee to know that the formal training for wildlife inspectors includes enforcement of the Police and Criminal Evidence Act 1984, the wildlife incident investigation scheme, and the licensing of piscivorous birds, European protected species, badgers, non-piscivorous birds, and other mammals such as rabbits and deer. All licensing training includes study of the biology and behaviour of species, of legislation relating to species, and of licensing procedures  according to the agreed working instructions. As part of their continued professional development, all wildlife inspectors have the opportunity to attend other training courses within DEFRA and externally.
Wildlife inspectors might not have formal qualifications on paper, but DEFRA does everything it can to ensure that their work is of the high quality required of them in order to sustain their good reputation. The amendment would do nothing to increase the competence of wildlife inspectors beyond that which I have described, and I respectfully request that it be withdrawn.
Amendment No. 116 would introduce a new subsection requiring wildlife inspectors to comply with the codes of practice issued under PACE. If there is a legal obligation for them to have regard to the codes under PACE, they will, of course, do so, but they do not conduct criminal investigations and the codes do not apply. The amendment would add nothing to their obligations under PACE.
In an attempt to be helpful and to add a little more clarity—or complexity, depending on how one views it—I shall briefly answer three questions. Do inspectors comply with the codes? Where the role of a wildlife inspector relates to the investigation of offences, and section 67(9) of PACE applies—I am sure that we are all familiar with that—he or she will comply with the codes of practice.
Is failure to comply with the codes of practice an offence? No, under section 67(10)(b) of PACE a failure on the part of
“any person other than a police officer who is charged with the duty of investigating offences or charging offenders to have regard to any relevant provision of ... a code in the discharge of that duty, shall not of itself render him liable to any criminal or civil proceedings.”
What training will wildlife inspectors receive on PACE? As I have said, they will receive training to ensure that they are familiar with its requirements and the codes of practices.

James Paice: I am still genuinely puzzled. According to the schedule, inspectors will carry out investigations that, although not criminal investigations, may be part of prosecutions. They will examine specimens, take samples and so on, and will, at least, be expected to give evidence on that, and it is highly likely that they will be expected to produce the specimens or samples. It is unclear whether, if they have not been collected and gathered under PACE, there might not be at least an excuse for legal challenge by the defendant or his lawyers or, at worst, that the evidence might be non-admissible because it has not been gathered under PACE. That is my confusion, and I hope that the Minister can clear it up.

Jim Knight: I cannot promise to do so. However, if it helps, section 67(9) of PACE requires that persons other than police officers who are charged with the duty of investigating offences or charging offenders shall, in the discharge of that duty, have regard to any  relevant provision of a code. Therefore, if they are investigating offences or charging offenders, they must have due regard to the code. There might be implications if they are accompanying a constable at the constable’s invitation when entering premises. It is important for the Committee to recognise that inspectors undertake activities that are not related to offences, in which cases the code does not apply. That is where the confusion might lie for any or all of us, and that is about as far as I can go in attempting to clarify things for the hon. Gentleman. The letter that I write to the Committee to explain the difference between the functions of an inspector and those of a constable might help to clarify the issue as well.
Amendments Nos. 117 and 118 both introduce a requirement for a wildlife inspector to have reasonable grounds to suspect an offence before exercising powers to enter and inspect premises, and as they are similar I shall deal with them together. Wildlife inspectors have never needed reasonable suspicion of an offence before exercising their enforcement provisions under the 1981 Act. Enhanced powers for authorised wildlife inspectors are available for a number of purposes, including ensuring that licence conditions are being complied with and verifying statements that are made in the context of licence applications. Those are some of the activities that are referred to that are not part of investigating offences.
The circumstances of those inspections differ from those in which an offence is suspected. Such compliance visits ensure the integrity and enhance the credibility of the licensing system, and there is no requirement for inspectors to have reasonable suspicion to enter land in that regard. That is consistent with the wording of the 1981 Act, which is working well, and we see no reason to change it. I therefore ask that the amendment be withdrawn.

James Paice: I am grateful to the Minister for at least some of his responses. For my benefit, if not for that of other Committee members, he still needs to clarify the points that we have raised concerning PACE. I shall not rehearse them again. On qualifications, I hear the Minister’s entreaty to believe that only the very best people will be taken, and I hope that he is right; that is a minor issue. I am less persuaded on the issue of reasonable grounds. On reflection, I understand his point that one should not have to have reasonable suspicion simply to go and verify a statement or, as he said, to check on licence conditions. However, if one is ascertaining whether a group 1 or group 2 offence is being or has been committed, under proposed new section 18B(1)(a), then it must be appropriate to have reasonable grounds for suspicion.
There is no point in pursuing the amendment, because I accept that it is defective in that it refers to all the non-investigative activities. However, I hope that the Minister will be sympathetic to the point that I am trying to make. To use his expression, the provisions for ascertaining whether an offence is being or has been committed should contain some constraint to prevent fishing expeditions.
Jim Knightindicated assent.

James Paice: The Minister is nodding. I shall take that to mean that he understands the point that I am making and will reflect on it, as he undertook to do earlier when we did the same thing. For the record, he has accepted that that is the case, and so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jim Knight: I beg to move amendment No. 147, in page 55, leave out lines 12 and 13.

Janet Anderson: With this it will be convenient to discuss the following:
Government amendment No. 140, in page 57, line 19, at end insert—
‘()After subsection (2) insert—
“(2A)A constable may, for the purpose of assisting him in exercising the powers conferred by subsection (1)(b) and (d) when he has entered any land under subsection (2), take with him—
(a)any other person, and
(b)any equipment or materials.”.’.
Government amendments Nos. 141, 148 and 149.

Jim Knight: I must begin by apologising to the Committee, because there appears to be a printing error on the amendment paper. In proposed new subsection (2A) in amendment No. 140, the word “land” should be “premises”. I apologise for that oversight, which came to my attention during this afternoon’s sitting. I hope that the Committee understands that.

James Paice: On a point of order, Mrs. Anderson. Can you clarify the legitimacy of the issue? I am not picking holes in the Minister’s point, but we are effectively dealing with a manuscript amendment, because it is substantively different. I am not clear whether the Committee could accept the Minister’s amendment, given that he has indicated quite a significant change to that we were advised on.

Janet Anderson: I am allowing the Minister to move the amendment in the amended form, and I hope that the Committee will agree with that.

Jim Knight: Thank you, Mrs. Anderson.
Amendments Nos. 140 and 141 relate to the powers of constables in the enforcement provisions in schedule 5. Amendments Nos. 147 to 149 relate to the definition of premises in schedules 5 and 11.
As amendments Nos. 140 and 141 deal with the same issue, I will address them together. The new wording will put in place clear safeguards for access to dwellings, to close a potential loophole that has been identified following the publication of the Bill. Under the amendment, constables acting under warrant will be able to take accompanying people with them only when authorised by the warrant. It will ensure judicial oversight where a constable may be entering dwellings in order to investigate offences under the 1981 Act, to ensure a robust enforcement of the legislation without jeopardising the rights of individuals.
To turn to amendments Nos. 147 to 149, a drafting oversight has meant that the Bill would put the full definition of the word “premises” in a potentially confusing place in the 1981 Act: in the enforcement  provisions, rather than in the interpretation section of part 1. When the Bill was drafted, it was not appreciated that the new definition of premises would also have an effect on section 6(3) of the Act, which contains offences to do with showing live wild birds at competitions. We believe that the proposed definition should apply to that section. We do not believe that that would change the extent of section 6(3). Therefore, the drafting should be amended to avoid any confusion. The amendment removes the references to the definition of premises and inserts a full definition into the interpretation section of part 1, namely section 27. I am sure that that is clear to the Committee, and that the amendment will be agreed to.

Amendment agreed to.

Amendments made: No. 140, in page 57, line 19, at end insert—
‘()After subsection (2) insert—
“(2A)A constable may, for the purpose of assisting him in exercising the powers conferred by subsection (1)(b) and (d) when he has entered any premises under subsection (2), take with him—
(a)any other person, and
(b)any equipment or materials.”.’.
No. 141, in page 57, line 21, leave out sub-paragraph (4).
No. 148, in page 59, line 3, leave out from beginning to second ‘in’ in line 6 and insert—
 ‘In section 27 (interpretation of Part 1), in subsection (1),’.

John Mann: I beg to move amendment No. 145, in schedule 5, page 60, line 22, at end add—
POWERS OF CONSTABLES EXTENDED TO OTHER WILDLIFE LEGISLATION (1) Section 19(3) of the Wildlife and Countryside Act 1981 (c. 69) applies for the purposes of the provisions specified in this paragraph as if the reference to reasonable grounds for suspecting that an offence under Part 1 of the 1981 Act has been committed were a reference to reasonable grounds for suspecting that an offence under the specified provisions has been, is being or is about to be committed. (2)The provisions specified in this paragraph are— (a)Part 3 of this Act, (b)Part 1 of the Wildlife and Countryside Act 1981 (c. 69),
(1) Section 19(3) of the Wildlife and Countryside Act 1981 (c. 69) applies for the purposes of the provisions specified in this paragraph as if the reference to reasonable grounds for suspecting that an offence under Part 1 of the 1981 Act has been committed were a reference to reasonable grounds for suspecting that an offence under the specified provisions has been, is being or is about to be committed.
(2)The provisions specified in this paragraph are—
(a)Part 3 of this Act,
(c)the Protection of Badgers Act 1992 (c. 51), and
(d)such other provisions as the Secretary of State may specify by order.
(3)Orders made by the Secretary of State under sub-paragraph (2)(d) are subject to annulment in pursuance of a resolution of either House of Parliament.
(4)The Secretary of State may not make an order under sub-paragraph (2)(d) unless he is satisfied that it is necessary or expedient to do so in the interests of protecting wild birds or wild animals.’.
I do not intend to delay the Committee for too long, but I present for its edification and that of the Minister what I call the bird and bat amendment. Members will be aware that my constituents are keen on birds and bats, and particularly unkeen when developers uproot trees and bushes in which birds and bats may be nesting. Some developers suggest, always informally and off the record, that the best way to deal with things such as trees is to get them chopped down quickly before anyone says that they should not be chopped down and before a preservation order can be put on them. If a developer is witnessed and caught chopping  down trees in which bats and birds are nesting, at some stage a wildlife crime officer from the police might attempt to prosecute the developer.
Of course a developer who chooses so to act knowingly may not inform the local residents of his intention to chop down the trees. In constituencies such as mine, one day a group of trees and bushes will be standing there, with birds nesting and bats flying around in the dusk, much to the edification of my constituents, but the next day said trees and bushes have been uprooted, chopped down and burnt, and the wildlife has disappeared.
What should one do if one suspects that a developer is about to act in such a way? Dialling 999 and suggesting to the police that they should appear in order to witness a crime against bats and birds that has not been committed is unlikely to get a positive response. However, if the bats are roosting in a barn, things are rather easier. Because the barn is covered by various planning Acts, one can inform the planning enforcement officer about the bats, and if there is a fear that the barn is to be demolished, the planning enforcement officer can act.
Therefore, there is a slight imbalance in the law. It has been raised quite vocally by a large number of my constituents, who have been upset by the actions of developers and others who have removed trees in which there have been bats and nesting birds. They have found that there is no remedy in law. I have no idea whether the Minister thinks that the amendment will precisely address the point, but it might. I would therefore be interested to hear his view on that and whether he could suggest an alternative remedy to deal with a major loophole about which my constituents implore him to do something.

David Chaytor: I support the comments of my hon. Friend who has forcefully described the importance of speed in certain instances of wildlife crime. I endorse his remarks. The amendment provides a minor, but significant improvement to the powers of the police. I should also like to identify one or two anomalies to highlight the importance of the amendment.
The powers given to wildlife inspectors, as described in schedule 5 and clause 44, are greater than the extended powers that we are proposing for constables.
Existing powers enable constables to enter land if they have reasonable suspicion that an offence has been, or is being, committed. However, the key point is that in many circumstances—my hon. Friend has described a small number of them—wildlife crime could involve the theft of eggs from the nests of protected species, badger baiting or many other examples of offences that might not yet have been committed or be in the process of being committed, but there could be overwhelming evidence to make a constable suspect that they were about to be  committed. That seems a powerful argument for extending constables’ powers to enter land in those circumstances.
My second point does not pre-empt the debate on part 6 of the Bill about motorised vehicles on rural roads. However, as things stand, in cases of offences committed in remote rural areas, constables with motorised vehicles might have access to tracks and bridal paths that would enable them to collect evidence that an offence was about to be committed. They might be observing people acting suspiciously, who might have all the tools of the trade for stealing rare eggs, badger baiting or whatever else. Now, the constables would not be able to enter the land adjacent to such tracks and carry out the necessary arrest or conduct their inquiries.
I understand that there may be some resistance to the amendment on the part of those who think it an infringement of the individual landowner’s liberty. Again, I refer back to the earlier debate, in which the Opposition said from time to time that the powers given were too intensive, and that that step represented an infringement of liberty and was tilting the balance a little too far.
It seems to me that many landowners would welcome the powers. Not all landowners are in favour of the kind of offence that we are talking about. We should be clear that this is not an extension of powers that would inevitably or automatically impact on the freedoms, liberties or privacy of landowners—indeed, precisely the opposite. The powers would in many cases be supported by landowners, who find all kinds of wildlife offences taking place on their land utterly against their will.
We are considering a reasonable and comparatively minor extension of constables’ powers. It would not extend their powers in any way beyond those that wildlife inspectors have at the moment, and many landowners would welcome it because it would increase the ability to conduct inquiries or arrest people committing wildlife offences. I support the amendment and hope that the Minister will consider carefully what has been said.

Madeleine Moon: I, too, support the amendment. It seems nonsense that prior to an offence being committed, police can enter land only with the landowner’s permission, even if the crime may be well under way. The police do not have the opportunity to move in until after the act. It must be remembered that wildlife crime can take place on private land far away from a road. One should not have to stand on a hillside far away with a set of binoculars. It is ridiculous to suggest that we position officers so that they can check what is happening from far away, or that we will have to find the landowner before the officers can get on to the land if they suspect that an offence is being committed.
The destruction of trees has been a particular problem in my constituency and that of my hon. Friend the Member for Bury, North (Mr. Chaytor). Before a planning application is submitted, trees are moved, ponds are filled in and events occur that damage the habitat, thereby endangering and even killing certain species, and nothing can be done  because the police officer cannot get hold of the landowner or gain access to the land until the offence has been committed.
I hope that the Minister will listen to the debate on the amendment and take note of it.

Jim Knight: This is an interesting bat and bird amendment, which my hon. Friend the Member for Bassetlaw (John Mann) has tabled. It would give the Secretary of State an order-making power to extend the enforcement provisions in section 19(3) of the Wildlife and Countryside Act 1981 to provisions in any Act that aims to protect wild birds or animals.
The amendment would also have the immediate effect of extending the time within which the powers available to the police under the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992 can be used. Under the 1981 Act, for example, powers can be used only where it is suspected that a crime has been committed. As we have heard, the amendment would extend that provision to situations in which it is suspected that an offence is being, or is about to be, committed. It would also introduce new powers to cover the new pesticides offence in part 3.
The amendment proposes quite wide-ranging powers that would, in effect, allow access under warrant to all land on which an offence might be committed. We would require evidence to show what problem the new powers would address, the justification for such powers, what the consequences would be if they were not granted, and what other remedies, if any, might be available, and the number of offences each year that would be covered by the change. We would also need to assess the impact on police resources.
We do not believe that there is significant evidence to support the change proposed by the amendment. It would, for example, be difficult to prove with any certainty whether a wildlife offence was about to be committed. It would also be difficult to ascertain with any certainty the impact that the proposal would have on police resources in terms of deterring possible future offences.

David Chaytor: Surely the point is that under the Wildlife and Countryside Act 1981 there is a need to prove reasonable cause for suspicion. That is the key phrase, because it is highly unlikely that any police force would use any new powers in a cavalier way. I would have thought that pressures on the police to target their resources are such that they will use them only if there is reasonable cause for suspicion. Surely that is the necessary constraint that should put the Minister’s mind at rest.

Jim Knight: I will return to that point at the end of my remarks, because there remain other issues worthy of consideration. There are also human rights issues, which I might need to consider. There is also a real need to ensure consistency of enforcement powers across legislation.
To some extent, there are alternative remedies. We are dedicated to the effective enforcement of wildlife legislation, as we have been saying today. Nevertheless, there is a real need to focus resources sensibly. Appropriate offences are listed in the 1981 Act, with appropriate penalties per offence, including a custodial sentence that we hope will act as a deterrent to those considering committing a crime. Where offences have been committed, we will pursue prosecutions with vigour. The amendments to schedule 6 will assist effective investigation and enforcement.
Individuals must apply for a licence to move certain European protected species. That would cover, for example, moving bats from a disused barn that is about to converted into a dwelling.
Tree preservation orders may be applied to trees that have an amenity value. Wildlife habitat may be taken into account when designating an order, which can be issued at very short notice. The relevant inspectors already have the necessary powers to gain access to land to assess any application, so if, for example, my hon. Friend the Member for Bassetlaw has constituents who are concerned about bats in trees, and if they suspect that an offence might be committed against bats in a tree, they have the power to use a tree preservation order to protect those bats. Similarly, all hedgerows more than 20 m in length that are not part of a garden are also already protected. Anyone proposing to remove a hedgerow must apply to the local authority for permission to do so.
To some extent, therefore, we have other remedies for some of the important problems raised by my hon. Friends. However, the amendment raises timing issues about wildlife offences, as my hon. Friend the. Member for Bury, North said, such as what powers the police should have to enter land on which an offence has been or is likely to be committed. Those are difficult issues, and they call for a judgment to be made about the protection of wildlife on the one hand, and landowners’ rights on the other. I am not in a position right now to make a judgment about how that balance should be struck.
I have promised to give due consideration to the subject raised by the hon. Member for South-East Cambridgeshire, and I have also promised to take action on non-native invasive species for the hon. Member for South-East Cornwall, so it would seem churlish not to promise my hon. Friend the Member for Bassetlaw and my other hon. Friends that we will consider the matter with colleagues and return on Report or at a later stage to tell them whether we can take this important issue a little further. On that basis, I urge my hon. Friend to withdraw the amendment.

John Mann: The Minister responds with his usual eloquence and charm, although that does not necessarily seduce the members of the Committee into automatically presuming that legislation will follow. I hear what he says, and I hope that he will put some proper consideration into the development issue, because a developer who actually puts in a planning application is not the developer who is likely to start disturbing or destroying wildlife habitat intentionally.  In examples from my constituency over the past four years, it has been precisely the developer who is thinking of putting in a planning application, but realises that he or she may have a significant problem, who “accidentally” removes said trees before anyone is aware that the meadows or pasture lands that they have lived next to—in some cases for 60 or 70 years—are all going to disappear, to be followed by a planning application that often takes great pleasure in saying that the site is now far more suitable because of the loss of habitat. It seems that increased police powers would be of assistance when people suspect that such activity is about to take place. In that context, and looking forward to ministerial intervention, I beg to ask leave to withdraw the amendment.

Schedule 5, as amended, agreed to.
Clause 52 ordered to stand part of the Bill.
Schedule 6 agreed to.
Clauses 53 and 54 ordered to stand part of the Bill.

Clause 55 - Notices and signs relating to SSSIs

James Paice: I beg to move amendment No. 130, in clause 55, page 21, line 7, at end insert—
‘after consultation with every occupier of that land’.
The amendment is another one that does not require much explanation. It is straightforward and simple. Needless to say, we support clause 54, which we just ordered to stand part of the Bill, and which changes some of the legislation on the protection of SSSIs. As an aside, I note that the Government have introduced the use of the word “recklessly” in clause 54. That was part of the genesis of the earlier amendment, and the Minister should bear that in mind in his further reflections.
Clause 55, which we are debating, adds to clause 54 provisions covering notices and signs. It simply says that Natural England, the new organisation, will be able to put up signs. I am suggesting in the amendment that Natural England should consult the people who own or occupy the land before putting up those signs. I am not saying that it should not be allowed to put up the signs, or that the occupiers should have a veto, but it is reasonable that the occupiers should always be consulted.
I have tried to touch on the reason for that in other debates. It is straightforward. There is a lot of apprehension in the countryside about what Natural England will be like and about what powers it will have. People’s experience of the current arrangements is not always good. Occupiers of land can be sensitive to what is done on land in which they have an interest. If Natural England is to have good relationships with occupiers of land, it is essential that occupiers know what is being done. Even if it has the power to erect notices, I suggest that Natural England should always  consult occupiers before erecting notices. It would help the credibility of the system if that were stipulated in the Bill.
I am sure that the Minister will say, “Of course Natural England will consult and talk to local people”—
Jim Knightindicated assent.

James Paice: The Minister is nodding his head to confirm that, as I expected, I foresaw his response. Therefore, I suggest that there is no reason not to include such provision in the Bill because, as I said, what is in the Bill affects the credibility of, and how people perceive, the legislation. If it says in the Bill that something has to be done, people will feel slightly comforted. If the Government are going to consult anyway, as the Minister’s nodding suggests, I hope that he will agree to put words to that effect in the Bill, to ensure that people understand that they still have rights over their land and that Natural England are not riding roughshod over their interests. I am not suggesting that Natural England would do that, but we must accept that it is a possible perception. I am anxious to make sure that things operate smoothly.

Jim Knight: I fully appreciate the intention of the amendment, but I am going to ask the Committee to resist it, for reasons that I hope to make clear. The power to erect notices and signs is for use where there is justified need because of Natural England’s responsibilities for sites of special scientific interest. We would, naturally, expect Natural England to liaise with owners and occupiers, as a matter of common courtesy, before using such powers. Its use is far more likely to be beneficial to the interests of owners and occupiers, and complementary to their efforts to manage the land for its special interests, than it is to have any detrimental effect on their interests. In almost every case, I imagine that once consulted, owners will be happy and everything will be fine.
I will give a key example. As we stated in the regulatory impact assessment, the provision will be particularly helpful in addressing problems such as third-party damage at sites of special scientific interest. Earlier this month, English Nature issued a press release stating that reported incidents of criminal activity on SSSIs had doubled in the last year, with more than 70 per cent. of incidents caused by persons other than the owners and occupiers. Unlawful off-road driving, which we shall discuss, and moor burning, for example, must be as much of a concern to the owners and occupiers of the land as it is to English Nature and will be to Natural England. Use of signs and notices, either at Natural England’s instigation or at the request of owners and occupiers, to warn and deter such people would benefit everyone.
In England, 55 per cent. of common land is SSSI land, and Committee members will know that this week we have introduced the draft Commons Bill in the other place, which will address issues in respect of  common land. However, some commons have hundreds of registered commoners and a requirement to conduct a formal consultation process with each and every one of them, even to erect only one or two signs at the point of entry to the SSSI, would be a significant administrative exercise completely disproportionate to any likely impact on the interests of the commoners.
Until we have implemented the Commons Bill—assuming that it passes all its stages in Parliament—it will still take some time to clarify all the registration of common land. As things stand, it will be difficult to know if we even have been able to contact all the commoners.

Roger Williams: I was going to raise the issue of common land anyway. I may have misheard the Minister, but did he say that an SSSI may consist of many hundreds of commons? I would dispute that. The land may be grazed by hundreds of commoners—[Interruption.] We might debate that. I cannot think of anything worse than having the whole of the English countryside covered with signs from English Nature—or Natural England. Will Natural England have to get permission under the Law of Property Acts to erect a sign on a common—because anyone else would have to do that—or will it have Crown immunity in this instance?

Jim Knight: The hon. Gentleman raises a fascinating question, and I am aware from preparatory work that I have done for the Commons Bill how complicated the law is on commons. I hope and anticipate that the measures in the Bill apply to common land as they would to anywhere, so that we can deal with some of the problems relating to SSSIs, given that 3 per cent. of  SSSIs are on common land in England and 8 per cent. in Wales. It is important that we are able to take this modest action to protect them.
I strongly urge that Natural England should be left to continue English Nature’s practice of informal liaison with owners and occupiers of SSSIs as part of their normal relationship. I am sure that Natural England will give careful consideration to any persuasive representations about location or other issues concerning any signage proposals. There are circumstances in which a statutory requirement to consult every one of the occupiers of land could work against the wish that I am sure all Committee members have to see such problems as unlawful off-road driving dealt with. In such cases, we would want to be able to display a sign quickly and efficiently without having to go through a costly exercise. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

James Paice: I appreciate the Minister’s point. Indeed, my hon. Friend the Member for Hexham had made the point to me earlier, sotto voce, about the number of commoners who could be involved so I understand that. The key point that the Minister has put on record is that he would expect Natural England to consult wherever possible, and his statement will be held hostage for the future if that does not happen—but I am sure that it will, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 ordered to stand part of the Bill.
Further consideration adjourned.—[Tony Cunningham.]
Adjourned accordingly at six minutes to Seven o’clock.